01990830
10-15-1999
Terran C. Tester, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Terran C. Tester, )
Appellant, )
)
v. ) Appeal No. 01990830
) Agency No. 980768
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning 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. The final decision was issued on October 14, 1998.
The appeal was postmarked November 6, 1998. Accordingly, the appeal is
timely (see 29 C.F.R. �1614.402(a)), and is accepted in accordance with
EEOC Order No. 960, as amended.
Appellant contacted an EEO Counselor on April 9, 1998, regarding
allegations of discrimination. Specifically, appellant alleged that
she was discriminated against when on February 10, 1998, she learned
she would not be rehired during the 1998 season. Informal efforts to
resolve appellant's concerns were unsuccessful.
On June 11, 1998, appellant filed a formal complaint alleging that she was
the victim of unlawful employment discrimination on the basis of reprisal.
On October 14, 1998, the agency issued a final decision (FAD) dismissing
appellant's complaint for failure to timely initiate contact with an
EEO Counselor. Specifically, the agency determined that appellant's
EEO contact on April 9, 1998 regarding the agency's February 10, 1998
decision not to rehire appellant was untimely. The agency found further
that appellant failed to provide any explanation for her delay in seeking
Counselor contact.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the EEO 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 Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988).
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 the instant matter, the record indicates that appellant learned on
February 10, 1998, that she would not be rehired during the 1998 season.
The record also indicates, however, that she did not seek counseling
regarding the issue until April 9, 1998, nearly two months after she
learned the agency would not rehire her. On appeal, appellant admits that
she knew on February 10, 1998, of the agency's plans not to rehire her.
She argues, however, that she didn't consider the agency's February 10,
1998 determination to be the final action on her prospects for seasonal
employment in 1998, because she continued to advise the agency that she
was available to work other agency positions. On appeal, appellant
acknowledges that she was aware of the 45-day time limit for seeking
EEO counseling, but that she �felt maybe [she] would be hired so [she]
waited to call the EEO right away.�
The Commission determines that appellant's EEO Counselor contact
on April 9, 1998, was untimely. The Commission has held that where
there is an issue of timeliness, the agency always bears the burden of
obtaining sufficient information to support a reasoned determination
as to timeliness. See Williams v. Department of Defense, EEOC Request
No. 05920506 (August 25, 1992). Appellant's contentions on appeal
that her supervisors advised her that she could check back regarding
a position, and that she believed that there were other positions
she could work, are insufficient to present adequate justification
pursuant to 29 C.F.R. �1614.105(a)(2), for extending the limitation
period beyond forty-five days. Accordingly, the agency's decision to
dismiss appellant'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 (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
October 15, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations