01a43878
09-15-2004
Lynn A. Windsor, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Lynn A. Windsor v. U.S. Department of Agriculture
01A43878
September 15, 2004
.
Lynn A. Windsor,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A43878
Agency No. 040223
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision, dated April 23, 2004, regarding her formal complaint of
unlawful employment discrimination in violation of the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
On December 9, 2003, complainant contacted the EEO office claiming that
she was discriminated against when:
(1) On May 17, 2003, she was not selected for the GS-0560�09 position
advertised under Vacancy Announcement Number ARS-X3E-32, and
(2) On August 25, 2003, another individual was pre-selected for the
GS-0560-09, Budget Analyst position re-advertised as GS-0560-7/9, under
Vacancy Announcement Number ARS-X3E-3320.<1>
Informal efforts to resolve complainant's concerns were unsuccessful.
On January 23, 2004, complainant filed a formal complaint alleging that
she was the victim of unlawful employment discrimination on the basis
of age.
The agency issued a final decision dismissing the complaint for untimely
EEO Counselor contact. The agency determined that forty-five days after
claim (1) was July l, 2003, and that the time limit expired with respect
to claim (2) on October 8, 2003. Consequently, it found complainant's
December 2003 contact to be untimely.
Further, the agency noted that complainant did not apply for the Budget
Analyst position when it was re-advertised. Therefore, the agency
determined that complainant failed to state a claim of discrimination
regarding claim (2).
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.
On appeal, complainant contends that she was unaware of the forty-five
day time limitation. Moreover, she states that she informed that EEO
counselor of this when she was counseled. The record contains, as an
attachment to the EEO Counselor's Report, a memorandum from complainant
to the EEO Specialist simply stating that �I was unaware of the fact
that there was a 45 day time period ....� The agency, however, did not
address complainant's assertion in its final decision. Because the record
does not indicate that complainant was notified of the time limit, i.e.
that EEO posters describing the forty-five day time limit were on display,
we find the agency's dismissal of claim (1) for untimely EEO Counselor
contact was improper.
However, as noted above, the agency also dismissed claim (2) on the
grounds that it failed to state a claim. According to the agency,
complainant did not apply for the Budget Analyst position when it
was re-advertised under Vacancy Announcement Number ARS-X3E-3320, and
therefore failed to demonstrate a present harm. Complainant argues
on appeal that �it was fruitless for me to reapply for the position
since I was not selected the first time it was advertised.� Generally,
a claim of discriminatory non-selection fails to state a claim when
the complainant failed to apply for the position. See Owen v. Social
Security Administration, EEOC Request No.05950865 (December 11, 1997).
A complainant is only aggrieved by such claims where he proves that the
agency discouraged him from applying, or that the application process was
secretive. See Ozinga v. Department of Veterans Affairs, EEOC Request
No. 05910416 (May 13, 1991). In claim (2), complainant admits that
she did not apply for the later vacancy. Complainant failed to show
that the agency discouraged her from applying, or otherwise kept her
unaware of the opening. Therefore, we agree with the agency that claim
(2) fails to state a claim.
Accordingly, the agency's decision to dismiss claim (1) was improper,
and is hereby REVERSED. Claim (1) is REMANDED to the agency for
further processing in accordance with this decision and the ORDER below.
The agency's decision to dismiss claim (2) was proper and is AFFIRMED.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
September 15, 2004
__________________
Date
1While neither the complainant nor the agency numbered the claims,
we do so for clarity.