0120082888
10-22-2009
Sheila L. Duhn, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Sheila L. Duhn,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal No. 0120082888
Agency No. 200821969FAA04
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 8, 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. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq. Upon review, the Commission finds that
complainant's complaint was properly dismissed pursuant to 29 C.F.R. �
1614.107(a)(2), for untimely EEO Counselor contact. In her complaint,
complainant alleged that she was subjected to discrimination on the
bases of disability (depression) and reprisal for prior protected EEO
activity when she learned on July 1, 2007 that she was not qualified for
the position of Support Specialist, advertised under Vacancy Announcement
Number AGL-AT-07-0135-94815, and therefore would not be considered for
the selection.
While the agency's final decision in this matter indicates that the
alleged discriminatory event occurred on July 1, 2007, the record is not
clear on the precise date complainant was advised of her non-selection
for the Support Specialist position. The record contains documentation
suggesting that complainant learned as early as June 28, 2007 that she
would not be considered for the job.1 In complainant's formal complaint,
she indicates that she applied for the job it issue in the "spring/summer
of 2007" and that she learned sometime later that she did not qualify
for the position and "corresponded with the Regional Office [regarding
her failure to be considered] until December 2007." In addition,
in complainant's statement on appeal she indicates that she "received
notice that [she] was not being selected and was not qualified for [the]
position in October 2007," but did that it did not become clear to her
until January 31, 2008 that she had been subjected to discrimination when
the agency failed to respond to a letter "dated near the end of December"
that she wrote to the agency regarding the matter.
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.
In construing the facts herein in the light most favorable to complainant,
the record indicates that complainant learned that she had not been
selected for the Support Specialist position by her own admission as early
as October 2007. However, complainant did not initiate contact with an
EEO Counselor until March 4, 2008, which is well beyond the forty-five
(45) day limitation period. Complainant does not allege that she was
unaware of the time limitations for timely seeking EEO counseling or that
she was prevented for any reason from timely contacting an EEO Counselor.
The Commission finds that complainant had or should have had a reasonable
suspicion of discrimination long before her March 4, 2008 counselor
contact. On appeal, complainant has presented no persuasive arguments
or evidence warranting an extension of the time limit for initiating
EEO Counselor contact.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
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
October 22, 2009
__________________
Date
1 The record contains a document dated June 28, 2007 informing complainant
that she did not meet the qualification criteria stated in the job vacancy
and as such, complainant would not be considered for the position.
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0120082888
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120082888