0120101480
08-17-2010
Hattie Byrd, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Hattie Byrd,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120101480
Agency No. HS-10-CIS-000321
DECISION
BACKGROUND
Complainant filed a timely appeal with this Commission from the February 1, 2010 Agency decision which dismissed 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the reasons that follow, the Agency's decision is AFFIRMED.
In her complaint, Complainant alleged that the Agency discriminated against her on the bases of race (Black) sex (female), color (not identified), and age (over 40) when: (1) in September 2007, management did not select her for the position of Mission Support Specialist, advertised under Vacancy Announcement Number CIS-139100-ATL; and (2) on August 1, 2008, management did not select her for the position of Immigration Analyst, advertised under Vacancy Announcement Number CIS-178430-FDS.
ISSUE
Was the Agency's dismissal of the complaint pursuant to 29 C.F.R. � 1614.105(a)(2) for untimely EEO Counselor contact proper?
CONTENTIONS ON APPEAL
On appeal, Complainant asserts that it was not possible to know that the Agency had discriminated against her within the 45 days because she had no knowledge of events that had occurred at Citizenship and Immigration Services (CIS). She asserts that shortly before engaging in the discrimination complaint process, she learned that several CIS employees had filed discrimination complaints regarding the positions for which she had applied and that as a result of their complaints, the employees received promotions. She asserts that she had never worked for CIS and learned of the events about CIS when she ran into someone who had had talked to someone else at CIS. She asserts further that it never crossed her mind that CIS had discriminated against her because CIS had offered her two positions which she declined to accept a position elsewhere.
On appeal, the Agency essentially restates the reasoning articulated in its decision.
ANALYSIS AND FINDINGS
In its dismissal, the Agency noted that the alleged discriminatory events occurred in September 2007 and August 2008, and that when Complainant initiated EEO Counselor contact on October 7, 2009, her contact was beyond the requisite 45 days and, further, that Complainant had failed to provide sufficient justification to extend the 45-day time limitation period. The Agency rejected Complainant's assertion that she did not realize that the Agency had discriminated against her until she was informed by a co-worker two weeks before initiating EEO Counselor contact about the qualifications of the selectees, noting that Complainant had failed to take reasonable steps to inquire about the status of the positions and the selectees until years after the selections were made.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of the Equal Employment Opportunity (EEO) Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 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 45-day 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 also 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..
Complainant does not dispute the dates when the nonselection occurred or the date when she initiated EEO Counselor contact. Further, the Report of EEO Counseling reflects the date of EEO Counselor contact and when the selections were made. Report of EEO Counseling (Dec. 7, 2009). Complainant's contact was therefore beyond the requisite 45-day time limitation period. Complainant's nonselections were, like hirings, promotions, and awards, discrete actions which should trigger a reasonable suspicion of discrimination. Waiting, as here, until one has "supporting facts" or "proof" of discrimination before initiating a complaint can result in untimely EEO Counselor contact. See Bracken v. United States Postal Service, EEOC Request No. 05900065 (March 29, 1990). Further, the Commission has consistently held that complainants must act with due diligence in the pursuit of their claims or the doctrine of laches may be applied. See O'Dell v. Department of Health and Human Services, EEOC Request No. 05901130 (December 27, 1990). Here, Complainant did not initiate EEO Counselor contact until over two years from the claim (1) nonselection and more than a year following her claim(2) nonselection.
CONCLUSION
Accordingly, the Agency's decision dismissing Complainant's complaint 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
August 17, 2010
__________________
Date
2
0120101480
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101480