Nancy Carrieri, Complainant,v.John Ashcroft, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionNov 8, 2004
01A44210_r (E.E.O.C. Nov. 8, 2004)

01A44210_r

11-08-2004

Nancy Carrieri, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.


Nancy Carrieri v. Department of Justice

01A44210

November 8, 2004

.

Nancy Carrieri,

Complainant,

v.

John Ashcroft,

Attorney General,

Department of Justice,

Agency.

Appeal No. 01A44210

Agency No. A-03-66-1042

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated April 30, 2004, 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. , Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. � 791 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 race (Caucasian), sex (female), disability, and age (D.O.B. 12/28/

61) while she was employed as a paralegal specialist, GS-11, when she was

subjected to a hostile work environment culminating in her constructive

discharge on May 9, 2003.

The agency dismissed the complaint pursuant to EEOC Regulation 29

C.F.R. �1614.107(a)(2) for untimely EEO Counselor contact. The record

shows that complainant contacted an EEO Counselor on July 17, 2003.

The agency noted that complainant indicated that she failed to contact

an EEO Counselor because she feared retaliation. The agency concluded

that although the time limit may be tolled in certain instances, fear

of retaliation is not sufficient justification to toll the time limit.

On appeal, complainant argues that she did not timely contact an EEO

Counselor because she was being treated for major depression and not

fully aware of her remedies. Moreover, complainant argues that she

was not aware that there existed a 45-day time limit for contacting an

EEO Counselor.

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.

EEOC Regulations provide that the agency or the Commission shall extend

the time limits when the individual shows that he was not notified of the

time limits and was not otherwise aware of them, that he did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence he was prevented

by circumstances beyond his control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

Regarding complainant's assertion that she was being treated for

major depression and unaware of her remedies, the Commission finds that

complainant has not submitted sufficient evidence to justify tolling the

time limit. Complainant submitted a general letter from her physician

which failed to show that she was so incapacitated at the time of the

resignation so as to prevent her from timely contacting an EEO Counselor.

A review of the record shows a memorandum dated February 25, 2004, from

the United States Attorney, Civil Division indicating that the poster

�EEO and You,� with information on the 45-day time limit, is displayed

on a bulletin board in each lunch room throughout all five floors,

including the lunch room on the same floor as complainant's office, and

on a bulletin board in the Personnel Office. Based on the foregoing, we

find that complainant had constructive knowledge of the 45-day time limit.

Accordingly, the agency's decision dismissing 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

November 8, 2004

__________________

Date