01982001
03-18-1999
Caroline L. Caleb, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Caroline L. Caleb v. Department of the Treasury
01982001
March 18, 1999
Caroline L. Caleb, )
Appellant, )
)
v. ) Appeal No. 01982001
) Agency No. TD-98-2013
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
)
DECISION
The Commission finds that the agency's December 19, 1997 decision
dismissing appellant's complaint on the basis of untimely EEO counselor
contact, is proper pursuant to the provisions of 29 C.F.R. �1614.107(b).
The record contains a document titled "EEO Management Counselor Request"
which shows that appellant sought EEO counseling on June 23, 1997,
alleging that she had been discriminated against on the basis of race
(Black) concerning her evaluation. The EEO Counselor's Report shows
that appellant sought EEO counseling on July 9, 1997. Appellant filed
her formal complaint of discrimination alleging that she had been
discriminated against on the bases of race (Black) and color (black)
concerning her annual appraisal. Appellant's complaint shows that
she claims the most recent discriminatory event occurred on April 16,
1997, and that she became aware of the alleged discrimination on January
28, 1997.
By letter dated November 13, 1997, the agency asked appellant to explain
why if she was aware of the discriminatory event since January 28,
1997, she did not seek EEO counseling until July 9, 1997. By letter
dated November 24, 1997, appellant informed the agency that although
she received her appraisal on January 28, 1997, she "was too upset to
discuss the rating". Appellant further stated that on April 16, 1997,
her manager acknowledged that she (appellant) deserved a better rating
and that at that time her blood pressure was under control and she was
able to review her file. Finally, appellant stated that she contacted
the EEO counselor "at least two weeks prior to the July 9, 1997 date".
The agency issued a final decision dismissing the complaint on the grounds
of untimely EEO counselor contact after finding that appellant's June
23, 1997 initial contact was well beyond the 45-day time limit of her
January 28, 1997 appraisal and her manager's comment on April 16, 1997.
On appeal, appellant contends that "April 16, 1997, was the wrong date
... the correct date is April 25, 1997 ... June 23, 1997, was not the
first call to the [EEO] office to report the incident ... the first
attempt was made on June 6, 1997".
The record shows that the EEO specialist declared "under penalty of
perjury" that appellant's initial EEO counselor contact took place
on June 23, 1997. A review of the record shows that appellant has
been inconsistent throughout the whole process regarding the dates
of many events in question. On her informal and formal complaints
of discrimination she stated that she became aware of the alleged
discriminatory event on January 28, 1997. She further stated that on
April 16, 1997, her manager told her that she deserved a better rating.
In response to the agency's November 13, 1997 written request for
additional information, appellant stated that on April 16, 1997, she
was told that she deserved a better rating and that she contacted the
EEO counselor two weeks before July 9, 1997. On appeal she once again
provides a new date by alleging that she contacted the EEO office on
June 6, 1997, and that instead of April 16, 1997, the correct date for
her manager's comment was April 25, 1997.
The record shows that appellant admits that she received her appraisal
on January 28, 1997, but that she was too upset to discuss the rating.
She further claims that on April 16, 1997, her manager told her that
she deserved a better rating. Under these circumstances it is of no
consequence whether the comment in question occurred on April 16, 1997,
or April 25, 1997. The fact is that since January 28, 1997, appellant
knew of the alleged discriminatory rating.
The Commission applies a "reasonable suspicion" standard to the
triggering date for determining the timeliness of the contact with an
EEO counselor. Cochran v. United States Postal Service, EEOC Request
No. 05920399 (June 18, 1992). Under this standard, the time period for
contacting an EEO counselor is triggered when the complainant should
reasonably suspect discrimination, but before all the facts that would
support a charge of discrimination may have become apparent. Id.;
Paredes v. Nagle, 27 FEP Cases 1345 (D.D.C. 1982). In the present case,
on January 28, 1997, appellant knew what her annual rating had been.
She claims that she was too upset to discuss her rating. Appellant's
vague statement is not sufficient to toll the 45-day time limit for
initial EEO counselor contact. She should have sought EEO counseling
within 45 days of the January 28, 1997 date. Instead, after appellant's
manager stated to her on April 16, 1997, that she (appellant) deserved
a better rating, she then decided that because her blood pressure was
under control, she could then review her file. She claims, without
sufficient supporting evidence, that she sought EEO counseling on June
6, 1997. We find that the persuasive evidence in the record shows that
she sought EEO counseling on June 23, 1997. Nevertheless, even if we
agree with appellant that she sought EEO counseling on June 6, 1997,
her contact would still be untimely because it did not took place within
45 days of the January 28, 1997 rating.
Accordingly, the agency's decision dismissing the complaint on the grounds
of untimely EEO counselor contact was appropriate and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
March 18, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations