01983258
03-16-1999
Mary K. Burdick, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Mary K. Burdick v. Department of Agriculture
01983258
March 16, 1999
Mary K. Burdick, )
Appellant, )
)
v. ) Appeal No. 01983258
) Agency No. 980156
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 agency was unable to supply a copy
of a certified mail return receipt or any other material capable of
establishing the date appellant received the agency's final decision.
Accordingly, since the agency failed to submit evidence of the date
of receipt, the Commission presumes that appellant's appeal was filed
within thirty (30) days of receipt of the agency's final decision. See,
29 C.F.R. �1614.402.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for failure to timely contact an Equal Employment Opportunity
(EEO) Counselor.
BACKGROUND
Appellant contacted an EEO Counselor on June 26, 1997, regarding
allegations of discrimination. Specifically, appellant alleged that
she was discriminated against when on May 15, 1995 she was denied a
lateral transfer to a location in North Carolina, while the similar
request of a male employee was approved. Informal efforts to resolve
appellant's concerns were unsuccessful. Accordingly, on November 13,
1997, appellant filed a formal complaint alleging that she was the victim
of unlawful employment discrimination on the basis of sex (female).
On February 20, 1998, the agency issued a final decision dismissing
appellant's complaint for failure to timely initiate counselor contact.
Specifically, the agency determined that appellant's June 26, 1997
counselor contact regarding an event which occurred on May 17, 1995,
was well beyond the time period for EEO contact as established by 29
C.F.R. �1614.105(a)(1).
ANALYSIS AND FINDINGS
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 45 days of
the effective date of the action.
EEOC Regulation 29 C.F.R. �1614.105(a)(2), provides that the agency or
the Commission shall extend the 45-day time limit when the individual
shows that he or she was not notified of the time limits and was not
aware of them, that he or she did not know and reasonably should not have
known that the discriminatory matter or personnel action occurred, that
despite due diligence he or she was prevented by circumstances beyond his
or her control from contacting the counselor within the time limits, or
for other reasons considered sufficient by the agency or the Commission.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the limitation
period was triggered. See Ball v. United States Postal Service, EEOC
Request No. 05880247 (July 6, 1988). Thus, the limitation period was
not triggered until a complainant should have reasonably suspected
discrimination, but before all the facts that would have supported a
charge of discrimination had become apparent.
The record reveals that on May 17, 1995 appellant learned that her
request for a lateral transfer to another work location had been denied.
Appellant initiated contact with an EEO Counselor on June 26, 1997.
Appellant argues on appeal that she did not become aware that she had
been discriminated against until she learned in June 1997, that the
transfer request of a male employee had been approved. While appellant
asserts that she sought counseling immediately after she became aware
of the male employee, she fails to indicate the circumstances which
led to her discovery or the method by which she discovered that she
had been treated differently than a similarly situated male employee.
Appellant offers no evidence, persuasive or otherwise as to how she
became aware that she had been discriminated against in June 1997 and
not before. Without more, we must affirm the decision of the agency. We
find, therefore, that appellant's contention is insufficient to justify
an extension of the applicable time limit for two years. See Baldwin
County Welcome Center v. Brown, 466 U.S. 147, 151 (1984) (per curiam)
("One who fails to act diligently cannot invoke equitable principles to
excuse lack of diligence"); Rys v. U.S. Postal Service, 886 F.2d 443,
446 (1st Cir. 1989) ("to find succor in equity a Title VII plaintiff
must have diligently pursued her claim.
CONCLUSION
Accordingly, the agency's decision dismissing appellant's complaint is
hereby AFFIRMED for the reasons set forth herein.
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:
March 16, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations