01A11116_r
04-25-2002
Lynette Burroughs, Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency.
Lynette Burroughs v. Department of Labor
01A11116
April 25, 2002
.
Lynette Burroughs,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 01A11116
Agency No. 9-11-30
DECISION
On March 1, 1999, complainant initiated contact with an EEO Counselor.
Informal efforts to resolve her concerns were unsuccessful. In her
formal complaint filed March 11, 2000, complainant alleged that the
agency engaged in discrimination when it denied her a promotion in
1996; incorrectly hired her into another position in 1991; and gave
her incorrect performance evaluations in 1997 and 1998.
In a final agency decision dated December 22, 1999, the agency dismissed
complainant's complaint for failure to cooperate. On appeal, the
Commission reversed the agency's dismissal, and remanded the complaint
to the agency for further processing. Burroughs v. Department of Labor,
EEOC Appeal No. 01A02587 (July 26, 2000).
In a final agency decision dated October 25, 2000, the agency again
dismissed complainant's complaint. The agency found that complainant
initiated contact with an EEO Counselor in an untimely fashion.
On appeal, complainant argues that the applicable time limits should
be waived. Specifically, complainant argues that she was misled by the
agency regarding her rights to file an EEO complaint; feared agency
reprisal for filing a complaint; and was not properly informed of the
EEO complaint process by the agency.
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.
Further, 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.
Upon review, the Commission finds that the agency properly dismissed
complainant's complaint. Complainant contends that the agency misled her
by erroneously informing her about her EEO rights; however, we determine
that this mere assertion is insufficient because the Commission requires
more than a bald assertion of agency misconduct in order to toll the
limitations period. See McDonald v. United States Postal Service, EEOC
Appeal No. 01981162 (Dec. 3, 1998) (time limitation not tolled where
complainant claimed he was told by an EEO official to contact the union
to file an EEO complaint, but complainant failed to provide the name of
the official or the date of the contact).
Moreover, on appeal, complainant also contends that the agency failed to
inform her of EEO procedure by �prominently� displaying this information.
However, we determine that this assertion is inadequate to waive the time
limits because complainant provides no basis or evidence establishing
that the agency's EEO postings were deficient.
Finally, we note that although complainant contends that fear of
retaliation precluded her from initiating timely Counselor contact,
we have held that such apprehension is an insufficient justification
for waiving the time limits for initiating EEO contact. See Kovarik
v. Department of Defense, EEOC Request No. 05930898 (December 9, 1993).
Accordingly, the agency's decision to dismiss 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
____April 25, 2002______________
Date