01a54027
09-15-2005
M. Cristina Zuniga, Complainant, v. Lawrence M. Small, Secretary, Smithsonian Institution, Agency.
M. Cristina Zuniga v. Smithsonian Institute
01A54027
September 15, 2005
.
M. Cristina Zuniga,
Complainant,
v.
Lawrence M. Small,
Secretary,
Smithsonian Institution,
Agency.
Appeal No. 01A54027
Agency No. 05-11-033105
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated April 12, 2005, 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. In her complaint, complainant alleged that she was subjected
to discrimination on the bases of national origin (Hispanic) and age
(D.O.B. 4/29/44) when she was not selected for the following positions:
Accounting Technician under Vacancy Announcement No. 02CS-1307 on or
about January 2003;
Accounting Technician under Vacancy Announcement No. 02VR-1308 on or
about January 2003;
Accountant under Vacancy Announcement No. 02DT-1356 on or about February
2003;
Library Technician under Vacancy Announcement No. 03-LH-1070 on or about
March 28, 2003;
Budget Analyst under Vacancy Announcement 03-JW-1136 on or about September
2003;
Accounting Technician under Vacancy Announcement 04BT-1091on or about
June 2004;
Accountant Technician under Vacancy Announcement SF-DEU-RM-5009 on or
about December 2004; and
Financial Management Technician under Vacancy Announcement No. 04BT-1297
on or about December 2004.
As background, complainant originally filed a complaint on July 11, 2003,
alleging discrimination when she was not selected for the position of
Accounting Technician on January 29, 2003. The matter was investigated
and referred to an Administrative Judge for a hearing. During that
proceeding, complainant moved to amend her complaint to add the claims
at issue in this decision. According to the record, the AJ denied the
motion on the grounds that discovery had been closed and these issues had
not been investigated. The AJ noted that complainant had been proceeding
pro se and believed that the AJ had jurisdiction over these later claims.
The AJ's Order required complainant to seek EEO counseling regarding
these matters within 45 days. The record reflects that complainant
sought counseling on December 4, 2004.
After counseling and receipt of the complaint, the agency issued a
decision dismissing the complaint. The agency concluded that claims one
through six should be dismissed for failure to contact an EEO counselor
in a timely manner. The agency concluded that complainant was either
aware of the claims at the time she had filed the earlier complaint or
during its processing, but she failed to seek counseling or to notify
the agency that she sought to add these claims to her complaint.
Furthermore, the agency determined that complainant failed to state a
claim with respect to non-selection number 7 because the record indicated
the announcement was cancelled. The agency decided that the cancellation
of the vacancy announcement was �not egregious in nature� and therefore,
it was not sufficient to render her aggrieved. FAD at 4.
Finally, the agency concluded that because complainant stated during
counseling that she was not sure whether she was selected or not,
she failed to show she was aggrieved with respect to claim number 8.
The agency dismissed this claim as well.
On appeal, complainant contends that she was misled by the agency's
EEO counselor who told her she could only contest the selection for the
position for which she was actually interviewed. Complainant contends
she did not realize the agency had discriminated against her until April
2003 when she met the new hires who were all significantly younger.
The agency responded that complainant has no good reason for not raising
the issues in a timely manner and its dismissals should be affirmed.
Moreover, the agency argues that to the extent complainant is appealing
the AJ's determination regarding the issues raised in her previous
complaint, her appeal is untimely and should be denied.
ANALYSIS AND FINDINGS
We address two preliminary issues before discussing the agency's
decision to dismiss the complaint. First, complainant's brief refers to
testimony given in her first complaint and to the AJ's decision finding
no discrimination in resolution of that complaint. To the extent that
complainant appeals that decision, the Commission finds her appeal
was untimely filed. The agency's Final Order in that case was mailed
to complainant on February 7, 2005, thereby making her appeal due no
later than March 12, 2005. The instant appeal was filed on May 10,
2005, therefore, her appeal of that decision was outside the regulatory
time frame. 29 C.F.R. � 1614.402.
Complainant's appeal also refers to a position open in June 2004, for
which she was considered during the course of settlement discussions.
The fact that complainant did not achieve settlement through selection for
this position, however, cannot form the basis of a claim. Therefore, her
appeal of the non-selection in June 2004 (claim number 6) is dismissed.
Moving to the remainder of the complaint, we set forth the law applicable
to the issues in this case. The Commission's regulations require 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. EEOC Regulation 29 C.F.R. � 1614.105(a)(1).
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. Moreover,
complainant must show 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 this case, complainant initially sought EEO counseling in April 8,
2003, when she was not selected for a position as Accountant Technician
in January 2003. During that same time period, complainant applied for
and was not selected for positions at issue in claims one through five but
she did not raise these issues during counseling. Only after the matter
was referred to the AJ for a hearing one year later did complainant file
a motion to amend the complaint to add these non-selections. Although
complainant claims she was not aware of the alleged discriminatory
conduct until April 2003, she does not adequately explain why she did not
raise these claims of non-selection at the time she sought counseling.
Therefore, we conclude that issues one through five were untimely raised
and the agency's decision to dismiss them is affirmed. We hold, however,
that the
facts surrounding these six non-selections are relevant as background
evidence to complainant's other remaining claims. See National Railroad
Passenger Corp. v. Morgan, 536 U.S. 101 (2002).
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent defines an
"aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
Applying these principles, we find the record indicates that complainant
was notified in writing that Vacancy Announcement SI-DEU-RM-5009 was
cancelled. In the same notification, the agency informed complainant
that another vacancy announcement was being issued for the same position
and invited her to apply. Complainant did not allege in her complaint or
during the counseling session that she thought the agency's cancellation
of the announcement was discriminatory, therefore we conclude complainant
has not stated a claim. When an agency cancels an announcement without
making a selection, complainant suffers no harm, is not aggrieved and
therefore, does not state a claim. Van Nest v. Department of the Army,
EEOC Request No. 05940969 (May 18, 1995). Further, there is no evidence
that she applied for the subsequently announced position. For these
reasons, we affirm the agency's dismissal of claim number 7.
Finally, complainant claims she was discriminated against when
she was not selected for the position at issue in claim number 8.
The agency dismissed this claim on the basis that complainant stated
during counseling that she was not aware whether she had been selected.
We conclude that the agency's dismissal was improper where complainant
alleged in her subsequently filed complaint that she had not been
selected. Moreover, there is no indication in the record that complainant
had been selected for the position which would render the complaint moot.
Therefore, we reverse the agency's dismissal and remand the complaint
for an investigation of claim number 8.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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
(R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
September 15, 2005
Date