0120110254
03-02-2011
Marilyn L. Callum, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Executive Office of the U.S. Attorneys), Agency.
Marilyn L. Callum,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Executive Office of the U.S. Attorneys),
Agency.
Appeal No. 0120110254
Hearing No. 443-2009-00073X
Agency No. USA200700508
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated September 7, 2010, 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.
Upon review, the Commission finds that Complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO Counselor contact.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
an Administrative Assistant at the Agency's U.S. Attorney's Office in the
District of Minnesota. On August 13, 2007, Complainant filed a formal
complaint alleging that the Agency subjected her to discrimination on
the basis of race (African-American) when she first learned that the
U.S. Attorney allegedly called Complainant, "fat, black, and lazy,"
or words to that effect.
The Agency accepted the complaint and investigated the matter, and
Complainant requested a hearing before an EEOC Administrative Judge
(AJ). On May 20 2009, the Agency filed a motion to dismiss the
matter with the AJ on the grounds of untimely EEO counselor contact.
The Agency argued that Complainant conceded she learned of the alleged
remark made by the U.S. Attorney sometime between June 4 and 10, 2007.
She immediately discussed the matter with the office's Ethics Officer and
another management official, who presented her with a number of options,
including filing an EEO complaint and/or going to the Office of Special
Counsel. Complainant elected to file a complaint with the Office of
Special Counsel on June 26, 2007. Sometime between August 6-10, 2007,
Complainant also contacted an EEO counselor at the advice of a relative.1
In an affidavit submitted to the AJ opposing the dismissal, Complainant
stated that she was unaware of the need to contact an EEO counselor within
45 days and that she did not recall seeing any posters at the Agency
containing the required information.2 Further, during a deposition,
Complainant expressly denied ever filing an EEO complaint in the past,
and stated that she could not recall ever contacting an EEO counselor
in any of her past federal employment.
In June 2009, the AJ denied the Agency's motion to dismiss, finding
adequate grounds to extend the limitation period based on a finding that
Complainant was not aware of the regulatory 45-day limitation period
for seeking EEO counseling. The matter proceeded to a hearing.
After a hearing was held, but before a decision was issued, the Agency
renewed its motion to dismiss on May 12, 2010, based on newly discovered
evidence that Complainant had, in fact, been aware of the time limits for
contacting an EEO counselor. The Agency submitted a copy of a decision
in an earlier complaint filed by Complainant while she was employed
by another federal agency. The decision involved an appeal filed by
Complainant in an EEO complaint where the agency had issued a dismissal
on the grounds of untimely EEO counselor. See Callum v. Dept. of the
Air Force, Appeal No. 01975915 (December 10, 1998).
The AJ granted the Agency's renewed motion to dismiss. The AJ noted that
Complainant did not dispute that her EEO counselor contact was beyond
the 45-day limitation period, but again argued that she was entitled
to equitable tolling. However, the AJ reasoned that she had denied
the Agency's initial motion based on a finding that Complainant was
not aware of the limitation period based on the statements she made
in her affidavit and deposition. The AJ found that the evidence of
Complainant's earlier EEO complaint revealed that the representations
made in her affidavit and answers given in her deposition were simply
not true. The AJ said that since her prior denial of the Agency's
motion to dismiss was predicated on the material fact that Complainant
had no knowledge of the 45-day limitation period, and it had now been
established that she had actual knowledge of the applicable timeframe,
she cannot argue that she was "misguided" by Agency officials and,
therefore, entitled to equitable tolling. Based on this analysis,
the AJ granted the Agency's motion to dismiss.
The Agency adopted the AJ's dismissal. The instant appeal followed.
ANALYSIS AND FINDINGS
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 45-day time limit shall be extended when the individual shows that she
was not notified of the time limits and was not otherwise aware of them.
29 C.F.R. � 1614.105(a)(2).
It is undisputed that Complainant's initial EEO counselor contact was
beyond the required limitation period from when she first learned of the
alleged discriminatory event. Complainant, however, argues that she is
entitled to an extension of the time period because she did not know about
the 45-day requirement. The AJ, however, specifically found that based
on Complainant's experience with a prior EEO complaint that had also been
dismissed on timeliness grounds, it was reasonable to conclude that she
had actual knowledge of the limitation period and should be bound by it.
Substantial evidence of record supports the AJ's conclusion concerning
Complainant's actual knowledge of the applicable limitation period.
Moreover, the AJ correctly dismissed Complainant's arguments that she was
"misguided" by the Agency officials she initially discussed that matter
with because, although they presented her with the option of pursuing an
EEO complaint, they did not inform her of the 45-day limitation period
or let her know that pursuing the option of filling a complaint with
the Office of Special Counsel would not toll the EEO limitation period.
As the AJ noted, any omissions of information by the Agency officials
were of no consequence because the evidence establishes that Complainant
had actual knowledge of the limitation period - she did not have to
rely on the information she received from the Agency. We also note
that the written instructions that preface the June 2007 complaint form
Complainant filed with the Office of Special Counsel, specifically state
that allegations of discrimination should be "immediately" brought to
the attention of an agency EEO office. The notice goes on to state:
"There are specific time limits for filing such complaints. Filing a
complaint with OSC [Office of Special Counsel] will not relieve you of
the obligation to file a complaint with the agency's EEO office within
the time prescribed by EEOC regulations (at 29 C.F.R. Part 1614)."
On appeal, Complainant has presented no additional persuasive arguments
or evidence warranting an extension of the time limit for initiating
EEO Counselor contact. The Commission finds the AJ correctly reviewed
the matter and provided the proper analysis.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
March 2, 2011
__________________
Date
1 The facility where Complainant worked did not have an EEO counselor
onsite. The record indicates that Complainant first contacted the
EEOC's Minneapolis office on August 1, 2007, where she was referred to
the Agency's EEO counseling program.
2 The record contains an affidavit from a management official indicating
such a poster was posted in Complainant's workplace.
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0120110254
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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