01992888
11-08-1999
Milagros Cotto, Appellant, v. Donna Shalala, Secretary Department of Health and Human Services Agency.
Milagros Cotto v. Department of Health and Human Services
01992888
November 8, 1999
Milagros Cotto, )
Appellant, )
)
v. ) Appeal No. 01992888
Donna Shalala, Secretary ) Agency No. OSH01198
Department of Health and )
Human Services )
Agency. )
______________________________)
DECISION
Appellant filled an appeal with this Commission from a partial dismissal
of her complaint of unlawful employment discrimination in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000
et seq. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
The agency dismissed allegation #2 of the appellant's complaint wherein
appellant alleged that she was discriminated against on the basis of age
(46) and in reprisal for previously filing an EEO complaint. The only
issue on appeal is whether the appellant's contact with her EEO counselor
is timely.
EEOC Regulation 29 C.F.R. �1614.105(a) (1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five
(45) day limitation period is triggered. See Ball v. USPS, EEOC Request
No. 05880247 (July 6, 1988). Thus, the limitations period is not triggered
until a complainant reasonably suspects discrimination, but before all
the facts that support a charge of discrimination have become apparent.
In the instant case, the chronology of events are not in dispute.
Appellant met with her supervisors on October 7, 1997 to discuss her
treatment within the office. After this meeting, appellant was placed
on continuous travel status. Appellant alleges that she was placed on
continuous travel status in retaliation for her past EEO activity.
On December 11, 1997, appellant was interviewed by investigators.
The investigators and appellant discussed the October 7, 1997 meeting.
Finally, On January 14, 1998 appellant contacted an EEO counselor for
the first time.
Appellant argues that her reassignment to continuous travel on October 7,
1997 was unlawful employment discrimination, but that she only suspected
discrimination after the December 11, 1997 investigator's meeting.
We cannot determine, on the current record, what happened at the
investigator's meeting to make the appellant suspect unlawful employment
discrimination.
If appellant should have reasonably suspected discrimination at the
time she was assigned to continuous travel, on October 7, 1997, then
her contact with the counselor exceeds the forty-five day window and her
contact with the counselor is untimely. On the other hand, if appellant
reasonably suspected discrimination for the first time on December 11,
1997, after meeting with the investigators, then her contact with the
counselor is timely.
The Agency, in its final decision, advances three arguments in support
of dismissal. First, the appellant did not inform the EEO counselor of
her contention that she first became aware of discrimination on December
11, 1997. Second, that the retaliatory event did not occur within 45 days
of counselor contact. Third, appellant's arguments are unreasonable.
However, the threshold issue is whether the appellant first developed a
reasonable suspicion of unlawful employment discrimination on December
11, 1997.
We agree with the agency that the appellant failed to contact an EEO
Counselor within the time limits specified by the regulations. We
have reviewed the appellant's argument that she was not aware of any
discriminatory conduct until December 11, 1997. However, the information
she provided does not meet her burden of proving that her subsequent
discovery of discriminatory animus was reasonable. Accordingly, we find
the agency properly dismissed allegation #2 as untimely.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1099)
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. 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
11/08/1999 ____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations