01a55923_r
01-27-2006
Mary C. Ramos, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Mary C. Ramos v. Department of the Army
01A55923
January 27, 2006
.
Mary C. Ramos,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A55923
Agency No. ARCCAD04NOV07925
DECISION
Upon review, the Commission finds that the agency's decision dated
July 28, 2005, dismissing complainant's complaint due to untimely EEO
Counselor contact is proper pursuant to 29 C.F.R. � 1614.107(a)(2).
In her complaint, dated December 30, 2004, which was amended on May 13,
2005, complainant alleged that she was downgraded because of a surgery;
she was medically placed and downgraded without her consent; and she
was not paid for performing the duties of an Upholsterer, WG-07.
The record indicates that complainant was allegedly downgraded from WG-07
to WG-5 effective April 23, 2000. With regard to her performing WG-07
duties, the agency, undisputed by complainant, stated in its decision that
its record was not completely clear as to when she was doing such duties,
but there was sufficient information to determine that it was untimely.
Specifically, the agency indicated that there was an electronic mail
message, dated May 4, 2004, reflecting that complainant complained
about her duties.
The record indicates that complainant contacted an EEO Counselor with
regard to her complaint on November 22, 2004, which was beyond the 45-day
time limit set by the regulations. With regard to her untimeliness,
complainant stated that although the alleged downgrade occurred a few
years ago, she did not realize that it was discriminatory until she met
with a union steward who told her that she might want to try and file
an EEO complaint.
The Commission has adopted a �reasonable suspicion� standard (as opposed
to a �supportive facts� standard) to determine when the limitation period
is triggered under the EEOC Regulations. See 29 C.F.R. � 1614.105(a)(2);
Ball v. United States Postal Service, EEOC Request No. 05880247 (July
6, 1988). In this case, the Commission finds that complainant knew
or reasonably should have suspected discrimination at the time of the
alleged demotion, and not at the time of her conversation with her
union steward four years later. Complainant provided no evidence what
specific new information she found out from her union steward nor why
she waited four years to contact the steward. On appeal, complainant
does not claim that she did not know about the requisite time limit to
contact an EEO Counselor at the relevant time. Based on the foregoing,
the Commission finds that complainant has failed to present adequate
justification to warrant an extension of the applicable time limit for
contacting an EEO Counselor.
Accordingly, the agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 27, 2006
__________________
Date