Leanna E. Kanoe, Complainant,v.Alberto Gonzales, Attorney General, Department of Justice, (Federal Bureau of Investigation). Agency.

Equal Employment Opportunity CommissionFeb 16, 2007
0120070311 (E.E.O.C. Feb. 16, 2007)

0120070311

02-16-2007

Leanna E. Kanoe, Complainant, v. Alberto Gonzales, Attorney General, Department of Justice, (Federal Bureau of Investigation). Agency.


Leanna E. Kanoe,

Complainant,

v.

Alberto Gonzales,

Attorney General,

Department of Justice,

(Federal Bureau of Investigation).

Agency.

Appeal No. 0120070311

Agency No. F-06-6214

DECISION

Complainant filed a timely appeal with this Commission from the final

agency decision dated September 20, 2006, dismissing her formal 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation

Act), as amended, 29 U.S.C. � 791 et seq.

On April 19, 2006, complainant, a former agency employee, initiated

contact with an EEO Counselor. Informal efforts to resolve her concerns

were unsuccessful.

On June 21, 2006, complainant filed the instant formal complaint.

Therein, complainant claimed that she was the victim of unlawful

employment discrimination on the bases of disability and in reprisal

for prior EEO activity.

On September 20, 2006, the agency issued a final decision. Therein,

the agency determined that complainant's complaint was comprised of one

claim, identified in the following fashion:

complainant did not receive a response to her request for a job transfer

and was coerced into retirement in 1998.

The record reflects that following her resignation from agency employment

on May 22, 1998, complainant sent several letters to the agency appealing

her resignation and requesting that an equitable adjustment be made to

her earned retirement. The record reflects further, that by letter

dated December 7, 2005, the Assistant Human Resources Officer informed

complainant that the agency did not have the authority to set aside her

resignation, or to credit her with additional service time in order to

make her eligible for retirement benefits. The Assistant Human Resources

officer advised complainant to contact the Office of Equal Employment

Opportunity (OEEO) if she believed her resignation was motivated by

discrimination.

In its September 20, 2006 final decision, the agency dismissed

complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2), on the

grounds of untimely EEO Counselor contact. The agency determined that

complainant's initial EEO Counselor contact occurred on April 19, 2006,

which it found to be beyond the 45-day limitation period. The agency

found that the alleged incidents of discrimination should have given

rise to a suspicion of discrimination at the time they occurred, and

that complainant failed to timely contact an EEO Counselor. The agency

noted that in her letter dated March 15, 2006 to the OEEO, complainant

stated that her resignation was caused by harassment and threats by

management but that she did not believe that her resignation was the

result of discriminatory action "but rather, was 'forbidden by the Office

of Personnel Management.'"

The agency also noted that in a letter to the agency dated September 29,

2005, complainant stated that she failed to address her resignation in

1998 because she had been "suffering from clinical depression since those

unfortunate days." The agency noted that complainant stated that because

she was suffering from stress, she was unable to focus and was under the

care of her physician during the relevant time. The agency determined

that complainant's claims were insufficient to warrant an extension of

the time limit for initiating EEO Counselor contact. The agency stated

that complainant was aware of the time limits for contacting an EEO

Counselor because she attended the annual all-employee conferences in

which the time limit was discussed; and EEO posters containing the time

limits were posted throughout her former workplace.

Further, the agency dismissed reprisal as a basis. Specifically, the

agency noted that complainant had no prior EEO activity.

EEOC Regulation 29 C.F.R. � 1614.107(a)(2) 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.

The record reflects that the matters identified in the instant complaint

occurred more than forty-five days prior to her initial EEO Counselor

contact of April 19, 2006. Complainant has failed to provide sufficient

justification for extending or tolling the time limitation.

Moreover, the Commission has consistently held that a complainant must

act with due diligence in the pursuit of her claim or the doctrine of

laches may apply. See O'Dell v. Department of Health and Human Services,

EEOC Request No. 05901130 (December 27, 1990). The doctrine of laches

is an equitable remedy under which an individual's failure to pursue

diligently her course of action could bar her claim. To the extent that

the instant complaint relates to her separation from agency employment,

complainant waited approximately eight years before she contacted an

EEO Counselor regarding this matter.

Moreover, even if complainant timely contacted an agency EEO Counselor,

the agency nonetheless properly dismissed reprisal as a basis. We find

that a review of the record reveals no evidence of prior EEO activity

by complainant.

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

February 16, 2007

__________________

Date

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0120070311

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120070311

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