0120120952
04-10-2012
Tammy M. Chacon, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior (Fish and Wildlife Service), Agency.
Tammy M. Chacon,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior
(Fish and Wildlife Service),
Agency.
Appeal No. 0120120952
Agency No. FWS-11-0344
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated November 9, 2011, 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.
BACKGROUND
During the period at issue, Complainant worked as a Human Resource Specialist, GS-0201-09, at the Agency's Budget and Administration, Division of Human Resources in Bloomington, Minnesota.
On May 23, 2011, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On July 1, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected her to discrimination on the basis of race when:
she was not informed of, or given the opportunity to compete for two Human Resources Specialist positions, GS-0201-7/9/11/12.
In its November 9, 2011 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 the alleged discriminatory event occurred on March 23, 2011, when Complainant was notified of the announcement of the conversion of two students in the SCEP program to career-conditional appointments as Human Resources Specialists.1 The Agency determined, however, that Complainant did not initiate EEO Counselor contact until May 23, 2011, which it found to be beyond the 45-day limitation period. The Agency noted that in her formal complaint, Complainant acknowledged that she became aware that she had not been informed of, or had not been given an opportunity to compete for the subject positions when she received the March 2011 email from the Human Resources Official announcing the conversion of the selected students to career-conditional appointments as Human Resources Specialists.
Further, the Agency noted that Complainant was asked to provide an explanation for her untimely EEO Counselor contact. Complainant stated that she did not become aware of the grade level to which the selected students were being converted until May 23, 2011, when a staff member notified her about the Organization Chart showing that the conversions were to GS-0201-07/12 positions.
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 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 alleged discriminatory event occurred on March 25, 2011. However, Complainant did not initiate contact with an EEO Counselor until May 23, 2011, well beyond the 45-day limitation period. Complainant waited approximately two months from the date of the alleged discriminatory event, on March 25, 2011, before she contacted an EEO Counselor on May 23, 2011. Complainant had or should have had a reasonable suspicion of discrimination regarding the non-selection more than 45 days prior to her initial contact with an EEO Counselor.
The Agency's final decision dismissing Complainant's formal complaint on the grounds of untimely EEO Counselor contact 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
April 10, 2012
__________________
Date
1 In its final decision, the Agency indicated that the email was sent on March 23, 2011. However, Complainant asserts that the email was sent on March 25, 2011. This two-day disparity does not, however, affect our disposition of the instant complaint.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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