01a44303_r
12-10-2004
Patricia K. Underwood, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Patricia K. Underwood v. Department of the Interior
01A44303
December 10, 2004
.
Patricia K. Underwood,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A44303
Agency No. LLM-03-033
Hearing No. 380-2004-00098X
DECISION
Complainant filed an appeal with this Commission from the agency's
decision dated June 2, 2004, 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 record reveals that on March 25, 2003, complainant sought EEO
counseling and subsequently filed a complaint on June 17, 2003. In her
complaint, complainant alleged that she was subjected to discrimination
on the bases of race (African-American), sex (female), and reprisal for
prior EEO activity, when:
On February 11, 2003, complainant learned that she was not selected for
the position of Land Transfer Program Specialist, GS-301-12, Vacancy
Announcement No. BLM/AK-01-81A.
By letter dated August 12, 2003, complainant's complaint was accepted by
the agency for investigation. At the conclusion of the investigation,
complainant was provided a copy of the investigative file and complainant
requested a hearing before an EEOC Administrative Judge (AJ). On March
26, 2004, the AJ issued a decision without a hearing, dismissing
complainant's complaint for untimely EEO Counselor contact.
The AJ concluded that complainant alleged �discriminatory treatment
based on sex, color and race, when, in August 2001, she was not selected
for the position of Land Transfer Program Specialist.� The AJ found
that complainant did not contact an EEO Counselor until March 25, 2003.
The agency's final action implemented the AJ's decision.
On appeal, complainant argues that she was afforded no opportunity
to address the AJ's decision to dismiss her complaint without a
hearing. Further, complainant argues that she had no reason to suspect
discrimination until February 11, 2003, when she had a conversation with
a co-worker, who had also applied for the subject position. Complainant
also points out several errors in the report of investigation submitted
to the AJ, including an erroneous August 2001 date of discrimination
subsequently cited by the AJ in her decision.
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.
The subject vacancy announcement closed on August 23, 2001. A form
letter addressed to �applicant� contained in the report of investigation
appears to indicate a selection was made sometime in September 2001.
While there is no evidence showing when, if ever, complainant was notified
of her non-selection by the agency, we find that complainant should have
inquired about the selection process long before the February 11, 2003
conversation with her co-worker. We find that complainant should have
taken reasonable steps to discover whether a selection had been made and
if made, the identity of the selectee. We find complainant's contact
with an EEO Counselor on March 25, 2003, was well beyond the 45-day time
limit of when complainant should reasonably have suspected discrimination.
Complainant's complaint is properly dismissed pursuant to 29 C.F.R. �
1614.107(a)(2) for untimely EEO Counselor contact.
We therefore AFFIRM the agency's final decision.
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
December 10, 2004
__________________
Date