01a51117
02-25-2005
Sheri Campbell, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
Sheri Campbell v. U.S. Department of Agriculture
01A51117
February 25, 2005
.
Sheri Campbell,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A51117
Agency No. 030073
DECISION
Upon review, the Commission finds that complainant's EEO Counselor contact
was untimely pursuant to 29 C.F.R. � 1614.107(a)(2). In her complaint,
complainant alleged that she was subjected to discrimination on the basis
of sex (female), in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq., and on the basis of
disability, in violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., when on June 5,
2002, the agency failed to re-hire her as a temporary Forestry Technician,
GS-0462-05, for the 2002 Fire Season.
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
In his decision, the AJ initially indicated that complainant's EEO
counselor contact was not timely, therefore, the complaint should
be dismissed. Specifically, the AJ found that complainant was aware
no later than April 9, 2002, that she was not going to be re-hired for
the Forestry Technician position at issue, so her contact with an EEO
counselor on June 20, 2002 was untimely. The AJ nevertheless proceeded
to address the merits of the case, and concluded that complainant
failed to establish that the agency's reasons were pretext for sex or
disability-based discrimination.
The AJ decision was issued on September 8, 2004. The agency apparently
failed to issue a final order, as required by 29 C.F.R. � 1614.110(a),
within 40 days of receipt of the hearing file and the AJ decision.
Accordingly, the AJ decision became the final agency order. Complainant
then timely appealed to the Commission on November 15, 2004.
In the instant case, complainant specifically states �I talked to . . . my
former supervisor, in April 2002, informing him that I wanted to work on
the BD Crew. He said that the BD Crew was already full and he did not
have a job for me.� Id. Complainant additionally contends, however,
that she �learned that the positions were finally filled on June 5,
2002, in a meeting with [the recommending official] and the [deciding
official].� Complainant's Response to Motion for Decision Without a
Hearing, at 2. It is clear from the record that by April 9, 2002,
complainant was on notice that the agency was not going to re-hire her.
It appears that in the June 5, 2002 meeting, the management officials
reiterated to complainant that she was not going to be re-hired, and
additionally provided more information about why she was not re-hired;
namely, at the time that the selection decisions were made, complainant
had not been cleared for duty due to her back condition. June 5, 2002
was not, however, the first time that complainant became aware that she
would not be re-hired.
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 Commission determines that complainant failed to timely seek EEO
Counseling regarding the matter raised in the instant complaint. Here,
although complainant may have gathered more supportive facts about her
non-selection during the June 5, 2002 meeting, we are not persuaded by
complainant's argument that she first learned she would not be re-hired
at that meeting. Accordingly, we need not reach the merits of the case,
and we AFFIRM the agency's final order implementing the AJ's decision
dismissing the instant complaint.
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
__________________
Date