01A43024_r
07-14-2004
Sabrina A. Rorie, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Sabrina A. Rorie v. Department of Justice
01A43024
July 14, 2004
.
Sabrina A. Rorie,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A43024
Agency No. I-03-E111
DECISION
Complainant filed a timely appeal with this Commission from an
agency decision, dated March 12, 2004, pertaining to her complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. The Commission accepts the appeal in accordance with 29
C.F.R. � 1614.405.
On May 22, 2003, complainant contacted the EEO office claiming that she
was discriminated against when:
effective March 12, 1999, she was removed from her position of Clerk
(Office Automation), GS-305-4, legacy Immigration and Naturalization
Service (INS), New York District Office, for excessive absences, excessive
unauthorized absences, and failure to request leave in accordance with
established procedures.
Informal efforts to resolve the complaint were unsuccessful.
Subsequently, complainant filed a formal complaint based on disability.
The agency issued a decision dismissing the complaint. Specifically,
the agency found that complainant's EEO Counselor contact was untimely.
Complainant was terminated by a letter dated March 9, 1999, effective
March 12, 1999, but did not contact the EEO office until May 22, 2003.
While the complainant indicated to the counselor that she was unaware
of the EEO process, the agency reasoned that complainant was notified
of the process and the time limit. Additionally, the agency dismissed
the complaint on the grounds that complainant raised the matter in a
negotiated grievance procedure. According to the agency, complainant
filed a grievance regarding her termination in 1999.
On appeal, complainant acknowledges that she filed a grievance with
the union. She asserts, however, that the matter was mishandled and
administratively closed on June 22, 2000. The week of May 12, 2003, she
contacted an Human Resources Specialist to request that her termination
be removed from her record. Complainant then followed the HR Specialist's
suggestion that she contact EEO.
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.
The record in the instant case contains a copy of complainant's March
9, 1999 removal letter. In addition to informing complainant of her
termination, the letter notified complainant that she could �raise any
allegation that this action was taken against you in whole or in part
because of discrimination . . . . To do so you must consult a Service
Equal Employment Opportunity Counselor within forty-five days of the
effective date of this action.� Therefore, we are not persuaded by
complainant's argument on appeal that she was unaware of the EEO process
until four years after her termination. The agency's decision to dismiss
the complaint for untimely counselor contact was proper.<1>
Accordingly, the agency's decision is hereby 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
July 14, 2004
__________________
Date
1Because of our determination, the Commission
will not consider whether the complaint was also properly dismissed on
other grounds.