0120082502
09-04-2009
Nichelle Reese, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Nichelle Reese,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120082502
Agency No. IRS-08-0092-M
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 5, 2008, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
ISSUE PRESENTED
Whether complainant timely initiated EEO counselor contact.
BACKGROUND
The record reveals that during the relevant time period, complainant
was employed by the agency as a tax examining technician at the agency's
Covington, Kentucky facility. In a notice dated April 6, 2007, the agency
informed complainant that it would remove her effective April 13, 2007.
On April 6, 2007, complainant notified the agency that she would resign
from the agency effective April 11, 2007.
In her complaint, complainant alleged that she was subjected to
discrimination on the bases of race (Black), sex (female), color (black),
disability and age when it forced her to resign her position effective
April 11, 2007.
In its final decision, the agency dismissed complainant's complaint on
the basis that complainant untimely initiated EEO counselor contact.
Complainant did not submit a statement on appeal.
ANALYSIS AND FINDINGS
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 Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
In this case, complainant resigned from the agency effective April
11, 2007. The record reveals that complainant initiated EEO counselor
contact for her constructive discharge claim on November 1, 2007,1 well
beyond the 45-day time limit. The record contains a declaration from
an EEO counselor at the Covington facility. In the declaration, the
counselor stated that EEO posters were placed on bulletin boards in the
"commons areas" of complainant's work facility. The counselor further
stated that the posters notified employees of the 45-day time limit for
initiating EEO contact and the contact information and photographs of
EEO staff. The record contains a copy of an EEO poster that informed
employees of the 45-day time limit and the contact information for the
Covington EEO counselor. Consequently, we determine that complainant
had constructive notice of the time limits for initiating EEO counselor
contact. Complainant has not provided any evidence that would warrant
a waiver of the applicable time limits. Accordingly, the Commission
AFFIRMS the agency's dismissal of complainant's complaint on the basis
that it was initiated by untimely EEO counselor contact.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
_______9-04-09___________
Date
1 We note that the EEO counselor maintains that complainant did not
initiate EEO counselor contact until November 27, 2007 and merely had a
telephone conversation with the counselor on November 1, 2007 regarding
complainant's claims. However, for purposes of analysis, we assume
arguendo that complainant initiated EEO counselor contact on November 1,
2007.
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0120082502
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120082502