Josephine Poulson, Complainant,v.Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionOct 7, 2003
01A23510_r (E.E.O.C. Oct. 7, 2003)

01A23510_r

10-07-2003

Josephine Poulson, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.


Josephine Poulson v. Social Security Administration

01A23510

October 7, 2003

.

Josephine Poulson,

Complainant,

v.

Jo Anne B. Barnhart,

Commissioner,

Social Security Administration,

Agency.

Appeal No. 01A23510

Agency No. 01-0146-SSA

Hearing No. 170-A1-8606X

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated June 7, 2002, dismissing her complaint of unlawful

employment discrimination. In her complaint, complainant alleged that she

was subjected to discrimination on the bases of race (African-American)

and sex (female) when, on August 2, 2000, she was not selected for the

position of Claims Authorizer (CA), GS-105-11.

On April 12, 2002, an Administrative Judge (AJ) issued an order dismissing

the complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely

EEO Counselor contact. On June 7, 2002, the agency issued a decision,

fully implementing the AJ's decision.

EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires complaints of

discrimination to be brought to the attention of the EEO Counselor within

forty-five (45) days of the date of the claimed discriminatory matter,

or, in the case of a personnel action, within forty-five (45) days of

the effective date of the action. The Commission's regulations, however,

provide that the time limit will be extended when the complainant shows

that he or she was not notified of the time limits and was not otherwise

aware of them, that he or she did not know and reasonably should not

have known that the discriminatory matter or personnel action occurred,

that despite due diligence he or she was prevented by circumstances

beyond his or her control from contacting the counselor within the time

limits, or for other reasons considered sufficient by the agency or the

Commission. See 29 C.F.R. � 1614.105(a)(2).

The record discloses that complainant was not selected for the CA position

on August 2, 2000. An audit of the CA's promotion package was conducted

on October 26 and 27 of 2000. Complainant thereafter initiated contact

with an EEO Counselor on October 30, 2000. In a letter dated December

28, 2000, complainant stated that she was told by the union to wait for

the results of the audit before filing a grievance.

The Commission finds that complainant should have reasonably suspected

discrimination by August 2, 2000, the date that she was not selected for

the CA, GS-105-11, position. Complainant did not initiate contact with

an EEO Counselor until October 30, 2000, which is beyond the forty-five

(45) day limitation period. On appeal, complainant has presented no

persuasive arguments or evidence warranting an extension of the time

limit for initiating EEO Counselor contact.

Accordingly, the agency's final decision dismissing complainant's

complaint 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

__________________

Date