01A45671
11-29-2004
Annie R. Sanders, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Annie R. Sanders v. U.S. Department of Agriculture
01A45671
November 29, 2004
.
Annie R. Sanders,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A45671
Agency No. 000753
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 26, 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. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. In her complaint, complainant alleged that she
was subjected to discrimination on the bases of race (African-American),
sex (female), and age (D.O.B. 12/15/36) when the agency assigned some
of her GS-11 Computer Specialist duties to another employee and failed
to noncompetitively promote her to a GS-12 level.
The AJ dismissed the complaint for untimely contact with an EEO Counselor
pursuant to 29 C.F.R. � 1614.107(a)(2) and for failure to state a claim
pursuant to 29 C.F.R. � 1614.107(a)(1) on April 28, 2003. Specifically,
the AJ found complainant sought EEO counseling after expiration of the
forty-five day limitation period for contacting an EEO Counselor and
failed to apply for the promotion at issue. The agency adopted the
AJ's decision.
On appeal complainant contends that there is no basis for a finding of
untimely contact with an EEO Counselor and argues that she applied for
the promotion at issue. The agency requests that we affirm its final
agency 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. Dep't of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complaint reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent. McLoughlin v. Dep't of the Treasury, EEOC Request
No. 05A01093 (April 24, 2003).
The Commission finds complainant should have reasonably suspected that
discrimination occurred in July 1999. However, complainant did not
initiate EEO counseling until May 10, 2000, well after expiration of
the forty-five day limitation. Complainant failed to provide adequate
justification to warrant an extension or waiver of the applicable time
limit in this case. Consequently, we find that the agency properly
concluded that complainant initiated untimely EEO Counselor contact.
Because we find the agency's dismissal for untimeliness was proper,
we do not address whether complainant failed to state a claim.
Accordingly, the agency's decision dismissing the complaint is AFFIRMED.
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
November 29, 2004
__________________
Date