01A43523_r
09-17-2004
Mary L. McCray-Ivey, Complainant, v. Thomas J. Ridge, Secretary, Department of Homeland Security Agency.
Mary L. McCray-Ivey v. Department of Homeland Security
01A43523
September 17, 2004
.
Mary L. McCray-Ivey,
Complainant,
v.
Thomas J. Ridge,
Secretary,
Department of Homeland Security
Agency.
Appeal No. 01A43523
Agency No. CIS-04-E033
DECISION
Complainant filed an appeal with this Commission from a March 18,
2004 agency decision, dismissing her complaint pursuant to 29 C.F.R. �
1614.107(a)(2) for failure to contact an EEO Counselor in a timely manner.
In her complaint, complainant alleged that she was subjected to
discrimination on the bases of national origin (Virgin Islands) and
color (dark black) when on January 13, 2003, she was not selected for
the position of District Adjudications Officer, as advertised under
vacancy announcement ER OC 02-281(WAS), Washington District Office,
Arlington, Virginia.<1>
In its decision dismissing the complaint, the agency stated that
complainant did not initiate EEO Counselor contact until November 28,
2003, which was beyond the 45-day time limitation period. The agency
stated that complainant should have had a reasonable suspicion of
discrimination when she learned of her nonselection on January 13, 2003,
and should have initiated contact 45 days therefrom. The agency also
indicated that complainant had filed a Freedom of Information Act (FOIA)
request on January 27, 2003, and in the request, complainant stated that
the agency had discriminated against her.
On appeal, complainant states that on January 16, 2003, she was
informed by the selectee of the selection. Complainant states that on
January 31, 2003, she called the agency's EEO office at headquarters
in Washington, D.C. The first call got disconnected after she asked
the person who answered to speak to Person A. On her second call, the
same person answered and told complainant that she could not help her.
Complainant stated that on February 26, 2003, she filed a FOIA request
and on November 6, 2003, received a response regarding her request.
The record reveals that the alleged discriminatory nonselection occurred
on January 13, 2003. The record contains a January 27, 2003 FOIA request
wherein complainant stated that she had applied for several District
Adjudication Officer positions previously, that her current application
was rejected, and that the agency was discriminating. The Counselor's
Report and a Request for Information Form reflect that complainant
contacted an EEO Counselor on November 28, 2003.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the EEO 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. United States Postal Service, EEOC
Request No. 05880247 (July 6, 1988). Thus, the limitations period is
not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent. When a complainant has some reason to support the belief
that prohibited discrimination has occurred, contact with a Counselor must
occur. Waiting until one has proof of discrimination before initiating
a complaint can result in untimely contact. See Bracken v. United States
Postal Service, EEOC Request No. 05900065 (March 29, 1990).
EEOC Regulation 29 C.F.R. � 1614.105(a)(2) provides that the agency or
the Commission shall extend the time limits when an individual shows that
he or she was not notified of the time limits and was otherwise unaware
of them, that he or she did not know and reasonably should not have
known that the discriminatory matter or personnel action occurred, that
despite due diligence he or she was prevented by circumstances beyond his
or 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 complainant had a reasonable
suspicion that she was being discriminated against in January 2003, when
she learned of her nonselection. Although it appears that complainant
may have contacted the EEO office on January 31, 2003, there is no
persuasive evidence that complainant intended to pursue the EEO process.
Complainant did not contact the EEO office again until November 28,
2003, almost 10 months later. A complainant commences the EEO process
by contacting an EEO Counselor and exhibiting an intent to pursue the
EEO complaint process. See Allen v. United States Postal Service, EEOC
Request No. 05950933 (July 9, 1996). The Commission is not persuaded
that complainant was told that she could not receive any help from
the EEO office in January 2003. The agency's decision dismissing the
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
September 17, 2004
__________________
Date
1Although in her complaint, complainant
typed in as the bases of discrimination �dark black� for race/color and
�U.S. Virgin Islands� as her national origin, the Commission notes that
in a continuation to the complaint form, complainant also stated that
she was discriminated against because she is an African American born
in the United States.