01a01278
07-10-2000
Rachael Bail, Complainant, v. Marc B. Nathanson, Chairman, Broadcasting Board of Governors, Agency.
Rachael Bail, )
Complainant, )
)
v. ) Appeal No. 01A01278
) Agency No. IA00
Marc B. Nathanson, ) Hearing No. 100-99-7371X
Chairman, )
Broadcasting Board of Governors, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated October 28, 1999, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> In her complaint,
complainant alleged that she was subjected to discrimination on the
bases of sex (female) and age (DOB 8/1/23) when:
She was notified in October 1997, that she was non-selected for the
position of Duty Editor (GS-14) in the Voice of America Newsroom; and
On November 17, 1997, she was notified of her non-selection for three
Duty Editor Positions (GS-14) in the Voice of America Newsroom.
The agency accepted complainant's complaint for investigation, and at the
conclusion of the investigation, complainant requested a hearing before
an EEOC Administrative Judge (AJ). On September 30, 1999, the AJ issued
a decision dismissing complainant's claim for failure to prosecute,
and for failure to timely contact an EEO Counselor. Specifically,
the AJ determined that complainant forfeited her right to proceed when
she failed to respond to her Order to file a summary judgment motion,
and that complainant contacted an EEO Counselor on January 20, 1998,
or 64 days after the last date of alleged discrimination, making it
beyond the forty-five day time limitation. On October 28, 1999, the
agency issued a final decision fully implementing the AJ's decision.
See 64 Fed. Reg. 37,644, 37,657 (1999)(to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. � 1614.110(a)).
On appeal, complainant asserts that she contacted an EEO Counselor on
December 17, 1997, or �30 days after being informed of her non-selection
to the Supervisor Editor positions (November 17, 1997).� As evidence for
her assertion, complainant points to her March 9, 1998 formal complaint
(as found in the Report of Investigation), which states �12/17/97" as
the �Date of First Contact.� We note that the date of first contact in
the complaint is both typed and written, with the date 1-98 crossed out.
We further note that the EEO Counselor's report states the date of initial
contact as �1/16/98,� and the date of initial interview as �1/20/98.�
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 days of the date of
the matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five 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 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.
Upon review of the record, we find that complainant's complaint was
properly dismissed. Although it is clear that the AJ mistakenly used
the EEO Counselor's January 20, 1998 date of first interview as the
initial date of contact, complainant has not supplied sufficient evidence
for us to conclude her initial contact was on December 17, 1997, and
therefore timely. The EEO Counselor's report clearly states the date
of complainant's initial contact as January 16, 1999, and by itself,
the formal complaint is not sufficiently reliable for the Commission to
find that the information in the EEO Counselor's report was in error.
Not only did complainant herself provide the information in her March
9, 1998 formal complaint, but the original January 1998 date in the
complaint was crossed out and replaced with the December 17, 1997 date
relied on by complainant. Therefore, as complainant's January 16, 1998
initial EEO Counselor contact occurred more than forty-five days after the
October 1997 and November 17, 1997 dates complainant knew of the alleged
discriminatory actions, the agency properly dismissed complainant�s
complaint for untimely EEO Counselor contact.<2> Accordingly, the
agency's decision dismissing complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
July 10, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date 1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.
2As we have affirmed the agency's decision to dismiss complainant's
complaint for untimely EEO Counselor contact, we do not address the
agency's alternative dismissal for failure to prosecute.