01A61065
05-24-2006
Alicia C. Lafever, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Alicia C. Lafever,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A61065
Agency No. FNP-2005-049
DECISION
The complainant filed a timely appeal with this Commission from the
agency's decision dated October 24, 2005, 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. The
complainant claimed that she was subjected to discrimination based on her
sex (female) when on April 8, 2002 she was informed that she was not
selected for the position of Chief Ranger, GS-0025-11, advertised under
vacancy announcement SEUF-MP-02-03.
She contended that she believed she was discriminated against based on her
marital status and gender when she learned that she was not selected. She
explained that in her job interview she was asked questions about her
marital status, such as how having the job and living 2.5 hours from her
husband would affect her marital life.
The complainant had been serving as a collateral duty EEO counselor since
June 2000. According to the complainant, she contacted an EEO supervisor a
couple of days after April 8, 2002 and said she believed that she was
discriminated against based on her marital status and gender when she was
not selected. The complainant indicated that the EEO supervisor responded
that marital status was not a protected basis, this was not a gender case,
and if she filed a complaint it would not go forward. The agency does not
deny this.
The complainant indicated that as time went on, her belief of gender
discrimination increased. She stated that on December 12, 2002, she asked
the selecting official why she was not chosen, and was told that the
selectee (male) had PowerPoint experience, something which the complainant
believed was not persuasive. Then, on January 24, 2003, the complainant
learned that the selectee was taking five months of training with the
Federal Law Enforcement Training Center, something which she already had,
in addition to years of such experience. She viewed this as significant
for the job.
The complainant stated that she attended an EEO refresher course on June 17
through 19, 2003, and in response to her inquiry regarding the interview
job questions what the EEO supervisor said, the main presenter advised this
was definitely an EEO gender issue, and the advice she got was wrong. The
complainant indicated that this presenter had very good credentials.
The complainant stated that she was prompted to seek EEO counseling after
taking an interview skills course for supervisors on March 7, 2005. The
interview course went over illegal and legal questions, and she stated that
she learned her interview questions were illegal. With regard to the
instant complaint, the complainant contacted an EEO counselor on April 11,
2005.
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.
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 complainant contends that she contacted an EEO counselor within 45
calendar days of when she learned what types of job interview questions
were illegal, as well as contacting the EEO supervisor within days after
learning she was not selected for the Chief Ranger position.
The EEO supervisor wrongly discouraged the complainant from filing an EEO
claim. Nevertheless, in this case, we find that this is insufficient
reason to find that the complainant timely contacted an EEO counselor.
Given that the complainant was an EEO counselor, we deem that she knew that
she had a right to file an EEO complaint and have it processed, and
understood the EEO supervisor's advice to mean it was unlikely she would
prevail. While this would justify some delay in pursuing EEO contact for
the purpose of filing an EEO complaint, it does not justify a nearly three
year delay, given the circumstances of this case.
With regard to her complaint, the complainant acknowledges that events in
late 2002 and early 2003 bolstered her belief that she was a victim of
gender discrimination. Then, with regard to her complaint, in June 2003
she indicated that she was informed by a trusted source that she had an EEO
gender claim and got the wrong advice from the EEO supervisor. Given the
above, and that three years passed since her first contact with an EEO
official before contacting an EEO counselor in April 2005 for the purpose
of pursing an EEO complaint, we decline to construe the first EEO contact
as being a timely initiation of EEO counseling. She effectively withdrew
the first contact by waiting three years, despite the above events.
Accordingly, the agency's decision dismissing the complainant's complaint
is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848, Washington, D.C.
20036. 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 (S0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 24, 2006
__________________
Date