Regina D. Williams, Complainant,v.John Ashcroft, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionDec 8, 2003
01A34787_r (E.E.O.C. Dec. 8, 2003)

01A34787_r

12-08-2003

Regina D. Williams, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.


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