01A14217_r
03-28-2002
Esther Leon, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Esther Leon v. Department of the Treasury
01A14217
March 28, 2002
.
Esther Leon,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A14217
Agency No. 01-4174
DECISION
Upon review, the Commission finds that the agency's decision dismissing
complainant's complaint due to untimely EEO Counselor contact is proper,
pursuant to 29 C.F.R. � 1614.107(a)(2). In her complaint, complainant
alleged discrimination on the bases of gender (female) and national origin
(Hispanic) when she was denied the opportunity to apply for a promotion
to the position of Intelligence Research Specialist, GS-132-13. In her
letter dated April 21, 2001, complainant indicated that in June 2000,
she learned that an identified supervisor was recommending some of her
subordinates for promotion to the alleged position and inquired about the
matter to her supervisor who was not aware about such. Complainant also
indicated that in November 2000, she learned that other employees were
promoted for the alleged position and �[F]rom that moment on I attempted
to find out what this program for promotional opportunity consisted of.�
Complainant stated that she did not become aware of discrimination until
January 22, 2001, when she learned that the alleged promotion program
was on hold.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts� standard) to determine when the limitation period
is triggered under the EEOC Regulations. See 29 C.F.R. � 1614.105(a)(2);
Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6,
1988). Thus, the limitations period is not triggered until a complainant
reasonably should have suspected discrimination, but before all the facts
that would support a charge of discrimination have become apparent.
Here, the Commission finds that complainant knew or reasonably should
have suspected discrimination in November 2000, when she learned of
other employees' promotion to the alleged GS-13 level position. Thus,
the Commission finds that complainant's EEO Counselor contact with regard
to the complaint on January 31, 2001, was beyond the 45-day time limit
set by the regulations. On appeal, complainant fails to present adequate
justification to warrant an extension of the applicable time limit for
contacting an EEO Counselor. Accordingly, the agency's decision is
hereby AFFIRMED.<1>
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
March 28, 2002
__________________
Date
1Although the agency dismissed the complaint
on the alternative grounds of failure to state a claim, we will not
discuss such since its dismissal was affirmed due to untimely EEO
Counselor contact.