Joyce J. Fullilove, Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionJan 8, 2001
01996043 (E.E.O.C. Jan. 8, 2001)

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.