01996043
01-08-2001
Joyce J. Fullilove, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Joyce J. Fullilove v. Department of the Treasury
01996043
January 8, 2001
.
Joyce J. Fullilove,
Complainant,
v.
Lawrence H. Summers,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01996043
Agency No. 99-2229
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 29, 1999, 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.<1> In her
complaint, complainant alleged that she was subjected to discrimination
on the basis of race (Black) when in 1995, the agency Personnel Office
qualified her at the GS-5 grade level rather than at the GS-7 grade
level for the position of Dyed Diesel Compliance Officer (DDCO).
The agency dismissed the complaint for untimely EEO counselor contact,
finding that complainant's March 22, 1999 initial EEO counselor contact
occurred beyond the forty-five (45) day limitation period. The agency
further determined that the evidence in the record supported a finding
that complainant had, or should have had a reasonable suspicion of
discrimination at the time that she was assigned at the GS-5 grade level,
because she sought redress through the agency's negotiated grievance
process.
On appeal, complainant maintains that although she thought that the
agency's decision to downgrade her to a GS-5 was wrong, she did not
suspect discrimination until February 1999, when she was asked to train
a new employee for a DDCO position and learned that he was not required
to be downgraded to the GS-5 level.
The EEO counselor's report indicates that at the time she accepted the
DDCO position, complainant was aware that other persons who were accepted
for DDCO positions at the same time were not downgraded at all, or were
not required to stay at the GS-5 level for the period of time required
of her. The counselor's report further indicates that complainant sought
redress for this perceived disparate treatment through the Union, but the
Commission notes that there is no evidence in the record pertaining to
the specifics of complainant's correspondence with the Union concerning
her classification in 1995. Finally, the counselor's report indicates
that after complainant received no satisfaction from the local union,
she wrote the National Union office, and even discussed the matter with
the person in charge of the Diesel Compliance Program.
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.
In the instant case, we find that complainant failed to provide
sufficient justification for her untimely EEO counselor contact.
Although complainant argues that she did not suspect discrimination
until February 1999, when she was asked to train someone for the same
position and he was not required to accept a downgraded GS-5 position,
the record indicates that when she first accepted the DDCO position,
complainant was aware that the same requirement was not placed on others.
Complainant failed to articulate why she suspected discrimination only
after February 1999, when the record clearly demonstrates that she
had knowledge of differential treatment at the time of her downgrade.
Moreover, we find that complainant's contention, even if persuasive,
is insufficient to justify an extension of the applicable time limit
for almost four years. See Baldwin County Welcome Center v. Brown,
466 U.S. 147, 151 (1984) (per curiam) ("One who fails to act diligently
cannot invoke equitable principles to excuse lack of diligence");
Rys v. United States Postal Service, 886 F.2d 443, 446 (1st Cir. 1989)
("to find succor in equity a Title VII plaintiff must have diligently
pursued her claim").
Accordingly, the agency's decision dismissing the instant complaint is
AFFIRMED for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
January 8, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.