01A20498_r
04-04-2002
Beverly L. Jones, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.
Beverly L. Jones v. Department of Health and Human Services
01A20498
April 4, 2002
.
Beverly L. Jones,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01A20498
Agency No. OSH-014-01
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision pertaining to 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.
The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
On November 22, 2000, complainant contacted the EEO office claiming
that she was discriminated against when she was not selected for the
position of Public Health Advisor, GS-685-12/13/14, advertised under
vacancy number OS-00-114X. Informal efforts to resolve complainant's
concerns were unsuccessful. Subsequently, complainant filed a complaint
based on race and age.
On October 4, 2001, the agency issued a decision dismissing the complaint
for untimely EEO Counselor contact. The agency concluded that based on
evidence in the record, complainant knew in August 2000, that a younger
white female had been selected for the position. The agency noted that
in her initial interview with the EEO Counselor, complainant disclosed
that she heard in August 2000, that the selectee had been chosen.
Moreover, the agency found that because complainant and the selectee
worked for the same supervisor, complainant could discern the race and
age of the selectee. Finally, the agency makes reference to an August
2000 letter to the Director of Constituent Services of the United States
Senator who represents complainant, which claimed discrimination in the
job selection, as evidence of her earlier suspicion.
On appeal, complainant argues that her contact was timely. She maintains
that it was only after she received the response to her Freedom of
Information Act (FOIA) request, and learned that her application was
received and she was placed on the Best Qualified list, that she knew
another person had been selected.
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.
Based on a review of the record, the Commission finds that complainant
reasonably suspected discrimination more than forty-five days before her
November 22, 2000 contact. Complainant contends that she did not learn
of her non-selection and the selection of a younger white employee until
November 2000, upon receipt of the response to her FOIA request. However,
in a letter dated August 24, 2000, to the Director of Constituent
Services for her Senator, complainant states:"[a]s a government employee,
I have seen discrimination and preferential treatment that is really
unbelievable, however, this job selection for the position that I am
inquiring about takes the cake." Complainant further stated in the
letter that the selectee has only been in government service for less
than three years, while she has over twenty years of experience.
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 discrimination
before initiating a complaint can result in untimely Counselor
contact. See Bracken v. U.S. Postal Service, EEOC Request No. 05900065
(March 29, 1990). Therefore, we find that complainant's November 22,
2000 EEO Counselor contact is untimely.
Accordingly, the agency's decision to dismiss the complaint was proper
and is hereby 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
April 4, 2002
__________________
Date