Sallie D. Claibourn, Complainant,v.Madeline K. Albright, Secretary, Department of State, Agency.

Equal Employment Opportunity CommissionMay 30, 2000
01a02410 (E.E.O.C. May. 30, 2000)

01a02410

05-30-2000

Sallie D. Claibourn, Complainant, v. Madeline K. Albright, Secretary, Department of State, Agency.


Sallie D. Claibourn v. Department of State

01A02410

May 30, 2000

Sallie D. Claibourn, )

Complainant, )

)

v. )

) Appeal No. 01A02410

Madeline K. Albright, ) Agency No. 99-45

Secretary, )

Department of State, )

Agency. )

____________________________________)

DECISION

On January 14, 2000, complainant filed a timely appeal with this

Commission from an agency's decision pertaining to her complaint of

unlawful employment discrimination in violation of the Age Discrimination

in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>

The Commission accepts the appeal in accordance with 64 Fed. Reg. 37,644,

37,659 (1999)(to be codified at 29 C.F.R. �1614.405).

Complainant contacted the EEO office regarding claims of discrimination

based on age, on May 6, 1999. Informal efforts to resolve complainant's

concerns were unsuccessful. Subsequently, complainant filed a formal

complaint alleging she was discriminated against when she was passed

over for promotion in favor of a younger candidate.

On December 14, 1999, the agency issued a decision dismissing the

complaint for untimely counselor contact. Specifically, the agency

determined that complainant applied for the position in August 1998

and was interviewed on October 26, 1998. According to the agency,

complainant was notified in November 1998 that another employee had been

selected and in January 1999 the selectee was moved into the position.

Complainant, however, did not contact the EEO office until May 1999.

Complainant makes no new contentions on appeal.

Volume 64 Fed. Reg. 37,644, 37656 (1999) (to be codified and hereinafter

referred to as 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.

EEOC Regulations provide that the agency or the Commission shall extend

the time limits when the individual shows that she was not notified of the

time limits and was not otherwise aware of them, that she did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence she was prevented

by circumstances beyond her control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

The record in the instant case contains a copy of a letter, dated

November 30, 1998, informing complainant that she was not selected for

the position. Moreover, the Counselor's Report indicates that in late

November 1998 complainant was told by one of the selecting officials

who had been selected. Therefore, we find that complainant should have

reasonably suspected discrimination more than forty-five days before her

May 6, 1999 contact. When asked about her untimely contact, complainant

told the Counselor that she was trying to determine if she had a case.

It was not until she had spoken with a co-worker that she decided she

might have a complaint. We find this to be an insufficient reason for

waiving the time limitation. The Commission has found that, since the

limitation period for contacting an EEO Counselor is triggered by the

reasonable suspicion standard, waiting until one has "supporting facts"

or "proof" of discrimination before initiating a complaint can result

in untimely Counselor contact. See Bracken v. U.S. Postal Service,

EEOC Request No. 05900065 (March 29, 1990). Accordingly, the agency's

decision to dismiss the complaint for untimely counselor contact was

proper and is hereby 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:

May 30, 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.