0120120107
02-27-2012
Nancy J. Koppe, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Executive Office of the U.S. Attorneys), Agency.
Nancy J. Koppe,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Executive Office of the U.S. Attorneys),
Agency.
Appeal No. 0120120107
Agency No. USA-2011-00650
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated September 1, 2011, dismissing a formal 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
During the period at issue, Complainant worked as an Assistant United States Attorney (AUSA) at the Agency's United States Attorney's Office, District of Nevada in Las Vegas, Nevada.
On May 11, 2011, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. Subsequently, Complainant filed a formal complaint on June 20, 2011, alleging that the Agency subjected her to discrimination on the basis of sex (female) when:
she was not selected for the positions of Deputy Chief of Team 2 in the Criminal Division in March 2006 and March 2007.
In its September 1, 2011 final decision, the Agency dismissed the instant formal complaint on the grounds of untimely EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency determined that the alleged discriminatory events occurred in March 2006 and March 2007, when Complainant was not selected for the two subject positions, but she did not initiate EEO Counselor contact until May 11, 2011, which was beyond the 45-day limitation period. Specifically, the Agency stated that Complainant knew about the United States Attorney's Office (hereinafter "Office") selections for the subject positions at the time they occurred, and at the time, she became aware two the selectees were for both positions. The Agency further found Complainant's contention that she did not initiate EEO contact until May 11, 2011, because she was not "given an opportunity to express interest in [the positions] or to show [you] would be the best person for it" does not change the fact that she knew the two AUSAs that were selected for the subject positions during the relevant period.
CONTENTIONS ON APPEAL
On appeal, Complainant, through her attorney, argues that it was not until April 25, 2011, when she became aware that she was eligible or considered to be a candidate for the subject positions. Specifically, Complainant states that during an April 25, 2011 testimony concerning a separate complaint, the First Assistant U.S. Attorney stated that in 2006 and 2007, Complainant was considered and not selected for the subject positions. Complainant states that during the relevant time, the Office did not have a formal process for internal candidates to apply for promotional opportunities such as Deputy Chief or Chief position.
Further, Complainant states that the Agency's dismissal of her complaint "is premised on an illogical argument that Appellant should have assumed she was a candidate for positions in a secret selection process maintained by Office management simply because Appellant was aware that there were vacant positions and that a male employee was promoted."
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 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.
In this case, Complainant submitted an affidavit during EEO counseling explaining her delay in seeking EEO counseling for the selections at issue. She avers that the positions were not advertised and no applications were solicited. While she concedes she was aware of the placement of individuals in these positions in 2006 and 2007, she asserts that she did not know that she was considered for the positions and rejected until April 25, 2011, during testimony on another matter. Her initial EEO counselor contact was just over two weeks later.1
Under these facts, we are persuaded that Complainant did not develop reasonable suspicion of alleged discrimination until she learned in April 2011 that she was considered and rejected for the positions in question. The Agency, in its dismissal decision, does not deny Complainant's allegations that the positions in question were not advertised and applicants were not solicited. It also does not deny that Complainant was not aware of how the selections were made or that she was considered and rejected until the April 2011 testimony in another matter. Accordingly, while it is unfortunate that so much time has passed in this case, we conclude that the limitation period for seeking EEO counseling did not begin to run until Complainant developed reasonable suspicion of discrimination. She pursued the matter well within the 45-day limitation period from the development of that reasonable suspicion.
The Agency's final decision dismissing Complainant's formal complaint on the grounds of untimely EEO Counselor contact is REVERSED and the complaint is REMANDED to the Agency for further processing in accordance with the following Order.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
February 27, 2012
__________________
Date
1 Complainant originally sought to amend another complaint pending a hearing to include these two non-selections. However, the Administrative Judge remanded the matter back to the Agency for processing as a separate complaint and directed that the date of her amendment - May 11, 2011 - be considered her initial EEO counselor contact.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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