01A41512_r
04-15-2004
Carol D. Caldwell-Ewart, Complainant, v. Colin L. Powell, Secretary, Department of State, Agency.
Carol D. Caldwell-Ewart v. Department of State
01A41512
April 15, 2004
.
Carol D. Caldwell-Ewart,
Complainant,
v.
Colin L. Powell,
Secretary,
Department of State,
Agency.
Appeal No. 01A41512
Agency No. DOS-F-020-04
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision, dated November 26, 2003, pertaining to her complaint
of unlawful employment discrimination in violation of Section 501 of
the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq. The Commission accepts the appeal in accordance
with 29 C.F.R. � 1614.405.
On September 15, 2003, complainant contacted the EEO office claiming
that she was discriminated against when:
(1) on March 14, 2003, she was denied a medical clearance for worldwide
availability for employment in the Foreign Service; and
(2) on June 9, 2003, her request for a waiver of the worldwide
availability requirement was denied.
Informal efforts to resolve complainant's concerns were unsuccessful.
Complainant filed the instant formal complaint dated November 20, 2003,
alleging that she was the victim of unlawful employment discrimination
on the basis of disability.
The agency issued a decision dismissing the complaint for untimely
EEO Counselor contact. The agency found that the forty-five-day time
limit began to run when complainant received the letter dated June 9,
2003, denying her request for a waiver of the worldwide availability
requirement for entry into the Foreign Service. According to the agency,
complainant's September 15, 2003 contact far exceeded the time limitation.
The agency noted that when asked why her contact was late, complainant
told the EEO Counselor that "it took awhile to get over the shock of
being rejected" and that she did not recognize the denial of her medical
clearance as discrimination. The agency did not find that complainant
provided sufficient justification for extending the time limit.
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.
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 her formal complaint, complainant identified the dates of the alleged
discrimination as March 14, 2003 and June 9, 2003. The record indicates
that she did not contact the EEO office until September 15, 2003, well
beyond the forty-five-day time limitation. As noted in the agency
decision, the Counselor's Report indicates that complainant explained
that "it took her awhile to get over the shock of being rejected by
the Foreign Service. . . ." Further, complainant indicated that she
did not feel that she had any recourse when she was rejected, merely
because she might be disabled �some day.�<1>
According to the Counselor's Report, complainant claimed that she did
not develop a reasonable suspicion of discrimination until September 8,
2003, when a friend sent an article on a similar situation. However, the
Commission has held that the time limit for contacting an EEO Counselor
shall not be extended "simply on the grounds that [the complainant] did
not know that disability in general or that [a disability in particular]
was covered under the Rehabilitation Act." See Moore v. Department of the
Navy, EEOC Appeal No. 01952942 (March 28, 1996). Therefore, we find that
the complaint was properly dismissed for untimely EEO Counselor contact.
Accordingly, the agency's decision is hereby 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
April 15, 2004
__________________
Date
1Complainant was diagnosed as having multiple
sclerosis; and asserted that she has no present physical disabilities
despite this diagnosis, and has had only two �exacerbations� of the
disease in approximately seventeen years.