0120101092
05-24-2011
Susie S. Cooley, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Susie S. Cooley,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120101092
Agency No. HS-09-FLETC-009403
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
final decision dated November 30, 2009, dismissing a formal 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 the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
During the period at issue, Complainant was employed as a Training
Technician, GS-9, at the Agency’s Office of State and Local Training,
Federal Law Enforcement Training Center in Glynco, Georgia.
On June 26, 2009, Complainant initiated EEO Counselor contact.
Informal efforts to resolve her concerns were unsuccessful.
On October 13, 2009, Complainant filed the instant formal complaint.
Therein, Complainant alleged that the Agency subjected her to
discrimination on the bases of race, color, and age when:
1. beginning in March 2006, management increased her job duties;
2. in 2007 and 2008, management denied her promotional opportunities
within the division; and
3. in December 2008, management assigned her as the Training Tech for
three Drug Enforcement Agency programs.
In its November 30, 2009 final decision, the Agency dismissed the
instant formal complaint on the grounds of untimely EEO Counselor
contact pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency determined
that Complainant’s initial EEO Counselor contact occurred on June
26, 2009, which it found to be beyond the 45-day limitation period.
Specifically, the Agency determined that Complainant’s initial EEO
contact was approximately four and a half months after the most recent
alleged discriminatory event. The Agency stated that Complainant was
aware of the requisite 45-day limitation period because the EEO posters
were on display in Complainant’s workplace that contained the 45-day
limitation period; all employees, including Complainant, received an EEO
complaint process book which outlined the 45-day limitation period; and
that Complainant participated in the No FEAR training on March 12, 2009
which outlined the 45-day requirement for initiated EEO Counselor contact.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that her June 26, 2009 EEO contact was
timely “due to the nature of the circumstances. Discrimination became
apparent through the course of time.” For instance, Complainant
argues that in regard to claim 2, she did not feel she was discriminated
against until two other GS-9 Training Tech positions were reclassified
and announced at the GS-11 level. Complainant further argues that after
the second Training Tech “got promoted in 2008, it became apparent to me
that unlike the others, my position was not going to be reclassified and
announced at the GS 11 level. This did not appear to be discrimination
until after months had passed and no attempts ere made to upgrade my
position.” Complainant further argues that in regard to claims 1 and 3,
she “filed her complaint as soon as the realization of discrimination
became a fact.”
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.
The record reflects that the alleged discriminatory events occurred
in March 2006, 2007, 2008 and December 2008, but that Complainant did
not initiate EEO Counselor contact until June 26, 2009, which was well
beyond the 45-day limitation period. We find that Complainant had,
or should have had a reasonable suspicion more than 45 days prior to
her initial EEO Counselor contact.
Complainant argues that she only developed a reasonable suspicion
well after the alleged discriminatory events occurred, and within 45
days of her June 2009 initial EEO contact. We are not persuaded by
this assertion. We note, for example, that in her formal complaint,
she stated that she had asked her Supervisor in December 2008, when
she would be getting “some relief from the added programs,” and
was assured that her division would be getting a new training tech
by the “first of the year”(2009). Complainant noted further that
at the beginning of 2009, her group did not get the tech and that her
workload increased. We therefore find that, on appeal, Complainant,
did not present persuasive arguments or evidence warranting an extension
of the time limit for initiating EEO Counselor contact. See 29 C.F.R. §
1614.604(c). Therefore, the Agency’s final decision dismissing the
complaint on the grounds of untimely EEO Counselor contact was proper.
Accordingly, the Agency’s decision to dismiss Complainant’s complaint
for failure to initiate contact with an EEO Counselor in a timely fashion
was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
May 24, 2011
__________________
Date
2
***Appeal number TX***
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101092
5
0120101092