01A34024_r
09-30-2003
Gloria McGhee, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Gloria McGhee v. Social Security Administration
01A34024
September 30, 2003
.
Gloria McGhee,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A34024
Agency No. 02-0276
Hearing No. 110-A3-8279X
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final action dated May 20, 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.
On March 1, 2002, complainant initiated contact with an EEO Counselor
claiming that she suffered discrimination in reprisal for prior EEO
activity. Informal efforts to resolve her concerns were unsuccessful.<1>
Subsequently, complainant filed a formal complaint claiming that she was
subjected to discrimination when she did not receive a performance award.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision dismissing the
complaint on the grounds of untimely EEO Counselor contact. Subsequently,
the agency implemented the AJ's decision in a final action dated May 20,
2003. It is this decision that is the subject of the instant appeal.
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 finds that complainant had or should have had a reasonable
suspicion of discrimination more than 45 days before her initial March 1,
2002 EEO Counselor contact. The award at issue was for the time period of
October 1, 1999 to January 11, 2001. We note that as early as August 8,
2001, complainant became aware that she was not receiving a performance
award when she made a request for a copy of her recommendation for an
award submitted prior to January 11, 2001, and documentation of the award
committee. Furthermore, the record contains a copy of complainant's
Interrogatories and Request for Production of Documents, prepared by
complainant's attorney, and dated August 6, 2001, relating to a prior
EEO complaint. Therein, complainant, through her attorney, requested
the names and addresses of all nominees for performance awards in the
agency's Paducah, Kentucky facility from August 1, 1998, through August
1, 2001. Moreover, the record reveals that the AJ in complainant's prior
complaint instructed the agency to furnish the requested documentation
to complainant's attorney. The record further reveals that the agency
supplied the requested documentation to complainant's attorney in
October 2001.
On appeal, complainant denies prior knowledge via the above referenced
communications, and asserts that after receiving the names of the
performance award recipients, on January 17, 2002, she contacted the
EEO office on March 1, 2002.
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). Notwithstanding her contentions to the
contrary, we determine that complainant knew that she did not receive an
award as of at least October 2001. We further determine that complainant
has not provided sufficient justification for tolling the time limit.
Accordingly, the agency's final action 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
September 30, 2003
__________________
Date
1The record reveals that complainant retired
from agency employment on May 2, 2002.