Terran C. Tester, Appellant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionOct 15, 1999
01990830 (E.E.O.C. Oct. 15, 1999)

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