01985320
10-28-1999
Marion S. McLean, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Marion S. McLean v. Department of the Army
01985320
October 28, 1999
Marion S. McLean, )
Appellant, )
)
v. )
) Appeal No. 01985320
Louis Caldera, ) Agency No. 9701H0010
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) concerning her complaint of unlawful employment
discrimination, in violation of Title VII of the Civil Rights Act of
1964, 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. The FAD
was received by appellant on June 3, 1998. The appeal was postmarked June
23, 1998. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),
and is accepted in accordance with EEOC Order No. 960, amended.
On May 2, 1996 appellant contacted an EEO counselor regarding allegations
of discrimination based on age (63) and sex (female) when: (1) on
September 13, 1993 she received a notice of separation from her position
as a Supervisory Psychologist in accordance with a reduction in force and
(2) approximately three weeks later, she received inadequate counseling
regarding her rights as the spouse of a 100% disabled veteran with a 10
point preference. On June 13, 1996 appellant filed a formal complaint,
which was dismissed on April 11, 1997 for untimely counselor contact.
Appellant appealed to the Commission, which issued a decision on
March 6, 1998. The Commission found that appellant should have had a
easoanble suspicion of unlawful employment discrimination on Septemher
13, 1993, when she received the notice of separation. The Commission
remanded the complaint for a supplemental investigation by the agency.
The agency was ordered to investigate whether at the time/place of the
alleged discrimination the agency posted EEO information or in some manner
provided EEO information to the appellant that included reference to the
time limit for contacting a counselor. McLean v. Department of the Army,
EEOC Appeal No. 01974816 (March 6, 1998).
In response to the Commission's order, the agency issued another FAD on
April 21, 1998. The FAD dismissed appellant's complaint for untimely
counselor contact. Specifically, the agency relied upon statements from
EEO Officers and one of appellant's former colleagues in concluding that
appellant had constructive knowledge of the time limits for contacting
a counselor.
The Commission finds that the agency properly dismissed appellant's
complaint for untimely counselor contact. 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 Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988).
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.
Here, as noted by the Commission in its previous decision, we find that
appellant should have reasonably suspected discrimination when she
received the notice of separation on September 13, 1993. Appellant
contends, however, that she was unaware of the EEO time limitations.
The affidavits obtained during the supplemental investigation state that
EEO information (including the forty-five (45) day time limitation) was
posted in appellant's work area, distributed to employees, and appellant
herself may have been responsible for informing her employees about
EEO procedures. We find, therefore, that appellant had constructive
knowledge of the applicable time limits. See Santiago v. United States
Postal Service, EEOC Request No. 05950272 (July 6, 1995).
Accordingly, the agency's decision dismissing appellant's complaint for
failing to timely contact a counselor is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
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. 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 (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:
10/28/1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations