0120111236
10-04-2011
Yvonne S. Williams, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Yvonne S. Williams,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0120111236
Agency No. HS-CBP-18140-2010
DECISION
Complainant filed a timely appeal with this Commission from the Agency’s
decision dated November 29, 2010, 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., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Upon review, the
Commission finds that Complainant’s complaint was properly dismissed
pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor
contact.
ISSUE PRESENTED
Whether the Agency properly dismissed Complainant’s complaint for
untimely EEO Counselor contact.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an Agriculture Specialist at the Agency’s Hartsfield Jackson
International Airport in Atlanta, Georgia. On June 3, 2010, Complainant
was removed from the Agency based on her violation of a “last chance”
settlement agreement. On September 20, 2010, Complainant contacted
an EEO Counselor. On November, 8 2010, Complainant filed a formal
complaint alleging that the Agency subjected her to discrimination on
the bases of race (African-American), sex (female), color (Black), age
(51), and reprisal for prior protected EEO activity under Title VII when,
on June 3, 2010, the Agency terminated her employment.
In its November 29, 2010 final decision, the Agency dismissed
Complainant’s claim for untimely EEO Counselor contact pursuant to
29 C.F.R. § 1614.107(a)(2). The Agency found that Complainant did not
initiate EEO Counselor contact until September 20, 2010, which was 63 days
beyond the required 45 day period for contact. In addition, the Agency
found that Complainant failed to set forth persuasive reasons for tolling
the time limitation period. The Agency noted that the EEO Counselor
documented that Complainant “did not come forward within the 45 day
time frame because she was trying to get her unemployment and wanted to
see what the outcome would be. [Complainant] stated that when she got
her unemployment appeal decision on September 9, 2010, she decided to
file an EEO complaint.” The Agency found that this explanation was
insufficient to extend the time period for EEO Counselor contact.
CONTENTIONS ON APPEAL
On appeal, Complainant, through her attorney, asserted that she was
“vaguely aware of time limits involved in her case, but she did not
understand when such time limits began and was under the impression
that her claims were filed timely.” Complainant argued that she
“knew that she had been discriminated against; however, she was
waiting for the unemployment benefits determination to be able to gather
sufficient evidence to establish that the [A]gency did not have a basis to
terminate her employment.” In addition, Complainant alleged that she
“believe[d] that her initial contact with the EEO Counselor was timely
based on the fact that it was made within 45 days of the date in which
[she] had obtained sufficient information to establish and determine
that the allegations made against her in the Termination Letter were
baseless and did not support her termination.”
The Agency did not submit a statement or brief in opposition to
Complainant’s appeal.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in
pertinent part, that an agency shall dismiss a complaint which fails to
comply with the applicable time limits contained in
29 C.F.R. § 1614.105(a)(1), which in turn, requires that complaints of
discrimination should be brought to the attention of the 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 limitation period is triggered. See Howard v. Dep’t
of the Navy, EEOC Request No. 05970852 (Feb. 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 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. 29 C.F.R. § 1614.105(a)(2).
In the instant case, we find that the Agency properly dismissed
Complainant’s complaint for untimely EEO Counselor contact. The record
shows that the alleged discriminatory event occurred on June 3, 2010.
Complainant therefore was required to initiate contact with an EEO
Counselor by July 19, 2010 in order to fall within the 45-day limitation
period, but Complainant did not initiate contact until September 20, 2010.
On appeal, Complainant asserted that she “knew that she had been
discriminated against; however, she was waiting for the unemployment
benefits determination in order to gather sufficient evidence to
establish that the [A]gency did not have a basis to terminate her
employment.” However, we find that this statement indicates that her
delay in contacting an EEO Counselor was an attempt to wait until all
of the facts to support a charge of discrimination became apparent,
rather than when she had reasonable suspicion that her June 3, 2010
removal was discriminatory.
In addition, Complainant asserted that she was vaguely aware of
the time limits involved in her case, but did not understand when
such time limits began. The Commission has consistently held that a
complainant who has engaged in prior EEO activity is deemed aware of
the time frames required for filing complaints in the EEO procedure.
See Coffey v. Dep’t. of the Navy, EEOC Request No. 05901006 (Nov. 16,
1990); see also Kader v. U.S. Postal Serv., EEOC Request No. 05980473
(June 24, 1999). The record reflects that Complainant filed a prior
EEO complaint on March 18, 2009. Accordingly, we find that the Agency
properly dismissed Complainant’s complaint for untimely EEO Counselor
contact pursuant to
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the
Agency’s final decision.
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
___10/4/11_______________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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