Athena Quezada, Complainant,v.Roderick R. Paige, Secretary, Department of Education, Agency.

Equal Employment Opportunity CommissionDec 1, 2003
01A34680_r (E.E.O.C. Dec. 1, 2003)

01A34680_r

12-01-2003

Athena Quezada, Complainant, v. Roderick R. Paige, Secretary, Department of Education, Agency.


Athena Quezada v. Department of Education

01A34680

December 1, 2003

.

Athena Quezada,

Complainant,

v.

Roderick R. Paige,

Secretary,

Department of Education,

Agency.

Appeal No. 01A34680

Agency No. 2003-15-00

DECISION

Complainant filed a timely appeal with this Commission from the final

agency decision dated June 23, 2003, 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., Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. � 791 et seq. and the Age Discrimination in Employment Act of

1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

On December 17, 2002, complainant contacted the EEO Office, claiming that

she was the victim of unlawful employment discrimination on the bases

of race, national origin, sex, disability, and age. Informal efforts to

resolve complainant's concerns were unsuccessful.

On May 2, 2003, complainant filed a formal complaint that is the subject

of the instant appeal. In its final decision, dated June 23, 2003,

the agency framed complainant's claims as follows:

1. Assignment of Duties

2. Denial of Accommodation

3. Denial of Reasonable Accommodations

a. to be placed in the Voluntary Leave Transfer Program;

b. to have a lighter workload; and

c. to be allowed to work an established flexiplace (telecommuting)

schedule

4. Time and Attendance

5. Terms and Conditions of Employment

6. Disparate Treatment

a. the perception that Hispanics are treated more favorably than other

employees.

The agency dismissed the complaint on the grounds of untimely EEO

Counselor contact. Specifically, the agency noted in the Counselor's

Report, the matters in claims (1) - (5) purportedly occurred in March

2001. The agency further noted in March 2001, while complainant was

experiencing a difficult pregnancy, management purportedly insisted

that she perform her duties without regard to her condition, and denied

her reasonable accommodation, flexiplace and Voluntary Leave Transfer

Program requests. Furthermore, the agency noted in the Counselor's Report,

complainant was aware of the forty-five-day limitation period but that

she recently became aware that a co-worker's leave had been restored

as a result of filing an EEO complaint, which prompted complainant to

contact the agency EEO office on December 17, 2002.

Regarding claim (6), the agency determined that it was unclear whether

it was an individual claim or whether complainant was raising claim on

behalf of other Hispanic employees in the agency's Denver Office of Civil

Rights. The agency advised complainant to seek counseling regarding claim

(6) within five (5) days after receipt of its final decision. Moreover,

the agency rejected complainant's claim that her complaint should be

construed as a continuing violation.

On appeal, complainant contends that the agency erred in its final

decision when it determined that complainant contacted the EEO office when

she became aware that a co-worker's leave had been restored as a result of

filing a complaint. Complainant further contends that the primary reason

that she contacted the agency's EEO office on December 17, 2002, was

that she then became aware that the Director did not have the authority

to refuse her participation in the Voluntary Leave Transfer Program.

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.

The Commission determines that complainant had or should have had

a reasonable suspicion of discrimination more than 45 days before

her initial December 17, 2002 EEO Counselor contact with respect to

the matters identified in claims (1) - (5). The record supports a

determination that as early as March 2001, complainant was instructed

by a team leader to perform her duties without regard to her difficult

pregnancy condition; and that she was aware of management's denial of

her reasonable accommodation, flexiplace and Voluntary Leave Transfer

Program requests. Further, the record contains the EEO Counselor's Report

wherein the Counselor wrote that complainant stated she was aware of the

EEO process at the time that the alleged discriminatory actions occurred.

We note that on appeal complainant contends that her initial EEO

Counselor contact on December 17, 2002, was precipitated by becoming

aware that an agency Director purportedly did not have the authority to

refuse her participation in the Voluntary Leave Transfer Program. The

Commission has found that since the limitation period for contacting

an EEO Counselor is triggered by the reasonable suspicion standard,

waiting until one has "supporting facts" or "proof" of alleged

discrimination before initiating a complaint can result in untimely

Counselor contact. Bracken v. United States Postal Service, EEOC Request

No. 05900065 (March 29, 1990). We also determine that the record supports

a finding that complainant was aware of the EEO complaint process at

the time that the alleged discriminatory actions occurred.

With respect to the matter identified by the agency as �claim (6),� we

note that the record contains complainant's e-mail dated June 6, 2003,

wherein she requested that a �sixth allegation to include same race

discrimination� be added to her complaint. Specifically, complainant

stated that the Regional Director explained to her that the reason she

was denied reasonable accommodation and Voluntary Leave Transfer Program

requests was that �there was a perception in the office that Hispanics,

specifically myself, are somehow treated differently (more favorably).�

While the agency determined that it was unclear whether claim (6) was

based on individual complaint or whether complainant was making this

claim on behalf of other Hispanic employees, we find that this matter is

in essence a reiteration of the matters identified in the above claims;

does not stand alone as a separate claim; and in essence appears to

be a request merely to add the basis of race to her formal complaint.

Accordingly, we will not address further the matter identified as �claim

(6).�

Finally, the Commission determines that as no claim occurred within

forty-five days of complainant's initial EEO Counselor contact, a

continuing violation analysis is not necessary.

Accordingly, the agency's final decision dismissing the complaint on

the grounds of untimely EEO Counselor contact was proper and 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

December 1, 2003

__________________

Date