0120113274
10-26-2012
Lois M. Lawson, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.
Lois M. Lawson,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 0120113274
Agency No. FS-2010-00311
DECISION
Complainant filed an appeal with this Commission from the Agency's Final Order dated May 25, 2011, 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. For the following reasons, we AFFIRM the Agency's Final Order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Deputy Director for Civil Rights at the Agency's Region V facility in Vallejo, California. On April 3, 2010, Complainant filed a complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American) and sex (female) when:
In September 2009, Complainant was not selected for the position of Supervisory Equal Employment Manager ("Civil Rights Director") advertised under Vacancy Announcement No. ADS09-R5-R05CR-00268G.
On April 21, 2010, the Administrative Judge (AJ) granted the Agency's Motion to Dismiss the complaint pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds that Complainant failed to initiate the EEO process within 45 days of the time she should have reasonably suspected that she had been subjected to discrimination. The AJ observed that Complainant was told she was not selected based on her lack of leadership abilities on September 3, 2009. The AJ found that Complainant should have suspected discrimination at the latest by mid-October 2009, when she learned she was to be recognized for her leadership abilities that the Agency's stated reasons for the selection were suspect and that discrimination was the real reason she was not selected for the identified position. However, the AJ found that Complainant waited until January 25, 2010, to initiate the EEO complaints process, which is beyond the 45-day time limit for requesting EEO counseling. The AJ dismissed the complaint for untimely EEO Counselor contact. The Agency subsequently issued its Final Order, fully implementing the AJ's Dismissal.
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 (Feb. 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.
In the instant case, we find the record supports the AJ's determination that Complainant should have reasonably suspected discrimination more than 45 days prior to her initial EEO Counselor contact. We find the AJ and the Agency properly dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact.
CONCLUSION
We therefore AFFIRM the Agency's Final Order dismissing the 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
October 26, 2012
__________________
Date
2
0120113274
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113274