01A34787_r
12-08-2003
Regina D. Williams v. Department of Justice
01A34787
December 8, 2003
.
Regina D. Williams,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A34787
Agency No. B-03-2473
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 14, 2003, 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 Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. In her complaint, complainant alleged that she
was subjected to discrimination on the bases of race, disability, and
parental status when:
Sometime in 1997, complainant was demoted from her grade as a GS-9
(Administrative Management Assistant), and subsequently she has been
denied training opportunities, denied requests to attend the Blacks in
Government conferences, and denied participation in the Alternate Work
Schedule (AWS) Program.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor
contact. The agency noted that complainant first contacted the EEO
Office regarding the issues raised in her complaint on April 24, 2003.
The agency stated that during counseling, complainant was unable to
provide the dates of the latest incidents which lead her to contact
the EEO Office. With regard to the 1997 demotion, the agency noted
that in her formal complaint, complainant stated that she became aware
of another similarly situated employee who was not demoted on August 7,
1999. The agency noted that in her formal complaint, complainant stated
that she intended to file an EEO Complaint once she found another job.
The agency argued that fear of reprisal is insufficient justification for
waiving the time period for contacting an EEO Counselor. Thus, the agency
concluded that complainant's complaint should be dismissed as untimely
since she failed to contact the EEO Office within forty-five (45) days
of the alleged discriminatory incident. Furthermore, the agency noted
that parental status is not a valid basis for discrimination complaints.
On appeal, complainant clarifies that she was demoted on December
7, 1997. Complainant claims that on August 7, 1999, she learned that
another employee with less seniority than her retained her GS-9 status.
Additionally, she lists specific incidents of alleged discrimination
experienced by herself and others. Among the specific incidents of
alleged discrimination she personally experienced, she states that on
an unspecified date an attorney came to ask her something embarrassing;
on January 31, 2003, an attorney humiliated her by yelling at her; on an
unspecified date she received a call at her residence from a personnel
employee requesting assistance with the �T&A's.�
The record contains a copy of complainant's formal complaint in which
she states that she was discriminated against when she was demoted from
a GS-9 to a GS-8, denied training or reimbursement for training, denied
attendance at the Blacks In Government (BIG) Conference, and denied
participation in AWS. She states that her intention was to file a
complaint once she found another job.
The record contains a June 21, 2001 electronic mail message from
complainant to Person A regarding the BIG Conference. Complainant
explains that she was told on June 21, 2001, that she could not attend
the conference for financial reasons. Complainant states that she was
demoted and placed in her current position as a secretary. She stated
that when she was placed in this position she had no secretarial skills
or legal background and has attempted to take courses to secure another
position. Complainant states that �[e]ach time I ask there is never
any money in the budget. As an African American, I am beginning to take
this personally as if they are purposely trying to hold me back.�
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 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.
Upon review, we find that the agency properly dismissed complainant's
complaint. Specifically, with regard to the issue of complainant's
demotion, the record indicates that this incident occurred on December
7, 1997; however, complainant failed to initiate EEO Counselor contact
until April 24, 2003. Further, with regard to the issues of denial of
AWS, denial of training opportunities, and denial of attendance at the
BIG Conference, we note that complainant failed to allege that any of
these incidents occurred within forty-five (45) days of her April 24,
2003 counselor contact. We find that complainant should have reasonably
suspected discrimination more than 45 days prior to her contact of an EEO
Counselor and we find that complainant failed to show that any incident
of alleged discrimination raised in the complaint occurred 45 days or
less prior to her initial EEO Counselor contact.
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
December 8, 2003
__________________
Date