05980263
03-04-1999
Linda Morgan, Appellant, v. Rodney E, Slater, Secretary, Department of Transportation, Agency.
Linda Morgan v. Department of Transportation
05980263
March 4, 1999
Linda Morgan, )
Appellant, )
)
v. ) Request No. 05980263
) Appeal No. 01972986
Rodney E, Slater, ) Agency No. 5-97-5023
Secretary, )
Department of Transportation, )
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
On January 2, 1998, appellant timely initiated a request to the Equal
Employment Opportunity Commission to reconsider the decision in Linda
Morgan v. Rodney E. Slater, Secretary, Department of Transportation,
EEOC Appeal No. 01972986 (November 24, 1997), which she received on
December 5, 1997. EEOC Regulations provide that the Commissioners
may, in their discretion, reconsider any previous Commission decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must submit
written argument or evidence which tends to establish one or more of
the following three criteria: new and material evidence is available
that was not readily available when the previous decision was issued,
29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous
interpretation of law, regulation or material fact, or misapplication of
established policy, 29 C.F.R. �1614.407(c)(2); and the previous decision
is of such exceptional nature as to have substantial precedential
implications, 29 C.F.R. �1614.407(c)(3).
Appellant filed a complaint in which she alleged that her supervisor
discriminated against her on the bases of sex and reprisal by issuing her
a letter of warning on May 28, 1996, and a letter of reprimand on July
16, 1996. The agency accepted the latter allegation, but rejected the
former allegation on the ground that appellant failed to timely contact
an EEO counselor. The previous decision summarily affirmed the agency's
dismissal of the letter-of-warning allegation.
Commission regulations require complainants who believe that they had
been discriminated against to contact an EEO counselor within 45 days of
the alleged discriminatory incident. 29 C.F.R. � 1614.105(a)(1). This
time period is triggered as soon as the complainant reasonably suspects
discrimination. Peets v. United States Postal Service, EEOC Request
No. 05950725 (March 28, 1996). Appellant received the warning letter
on May 28, 1996. In her request for reconsideration, she appears
to be arguing that she did not become aware that the warning letter
was retaliatory until she received a response from her supervisor on
June 25, 1996. In a telephone conversation with the investigator on
January 15, 1997, however, appellant stated that she suspected that the
letter of warning was an act of reprisal as soon as she received it.
She therefore had until July 12, 1996, to contact an EEO counselor.
She did not contact the Departmental Office of Civil Rights (DOCR)
until July 18, 1996, and did not actually contact a counselor until
August 21, 1996. Her contact with the (DOCR) occurred six days after
the 45-day time limit expired, and was therefore untimely.
The agency must extend that time limit if appellant 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 had 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. 29 C.F.R. � 1614.105(a)(2). Appellant argues in her request
for reconsideration that, until she contacted the civil rights office on
July 18, 1996, she was unaware that reprisal allegations had to be filed
separately from the underlying complaint. In a telephone conversation
with the investigator on December 27, 1996, however, appellant stated
that, "there really was not a specific reason for the delay," and that
she did not know why she waited so long to contact a counselor. Her
after-the-fact argument lacks credibility and is without merit, in light
of her admission to the investigator. She has not presented any other
argument or evidence that would justify extending the 45-day time limit
under the criteria outlined in 29 C.F.R. � 1614.105(a)(2). We therefore
agree with our previous decision that the agency properly dismissed the
letter-of-warning allegation for untimely counselor contact.
After a review of appellant's request for reconsideration, the
agency's response, the previous decision, and the entire record, the
Commission finds that appellant's request does not meet the criteria
of 29 C.F.R. �1614.407(c), and it is the decision of the Commission
to deny appellant's request. The decision of the Commission in Appeal
No. 01972986 remains the Commission's final decision. There is no further
right of administrative appeal from a decision of the Commission on a
request for reconsideration.
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
March 4, 1999
_______________ ______________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat