0120093365
04-19-2011
Sandra L. Gray, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, Agency.
Sandra L. Gray,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120093365
Agency No. HHS-OS-0049-2009
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated June 26, 2009, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Legal Assistant at the Agency’s facility in Irvine, California.
On June 6, 2009, Complainant filed a formal complaint alleging
that the Agency subjected her to discrimination on the basis of race
(African-American) when on January 29, 2009, the Agency downgraded her
performance evaluation from an “exceptional” rating to a “fully
successful” rating.
In its final decision, the Agency dismissed Complainant’s complaint
on the basis that it was initiated by untimely EEO counselor contact.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency improperly dismissed
her complaint. Complainant maintains that she met with her supervisor
on February 12, 2009, in an alternative dispute resolution process in
an attempt to resolve the evaluation issue. She further maintains that
her “grievance” was denied by the supervisor on March 20, 2009,
and she timely initiated EEO counselor contact on March 24, 2009.
The Agency did not submit a statement on appeal.
ANALYSIS AND FINDINGS
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. Dep’t of the Navy, EEOC Request No. 05970852 (February 11, 1999).
The record reveals that Complainant received notice of her final
performance evaluation for calendar year 2008 on January 29, 2009.
The record further reveals that Complainant did not initiate EEO counselor
contact until March 24, 2009, which is beyond the 45-day time limit.
Complainant contends that the time limit for contacting an EEO counselor
was not triggered until March 20, 2009, the date on which her attempts to
resolve this matter through a non-EEO procedure failed. The Commission
has consistently held that the utilization of agency procedures, union
grievances, and other remedial processes does not toll the time limit
for contacting an EEO Counselor. See Ellis v. U.S. Postal Serv., EEOC
Appeal No. 01992093 (Nov. 29, 2000). On appeal, Complainant fails to
present any evidence that would warrant an extension or waiver of the
relevant time limits. Consequently, we find that Complainant’s March
24, 2009 EEO contact was untimely.
CONCLUSION
Accordingly, the Commission AFFIRMS the Agency’s dismissal of
Complainant’s complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
April 19, 2011
Date
2
01-2009-3365
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120093365