Annie R. Sanders, Complainant,v.Ann M. Veneman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionNov 29, 2004
01A45671 (E.E.O.C. Nov. 29, 2004)

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