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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