01A23741_r
03-19-2003
Carolyn C. Bennett, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Carolyn C. Bennett v. Department of the Army
01A23741
March 19, 2003
.
Carolyn C. Bennett,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A23741
Agency No. ARFORSC02MAY0001
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated May 20, 2002, dismissing 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. In her complaint, complainant alleged that she
was subjected to discrimination on the bases of disability (perceived)
and reprisal for prior EEO activity when:
M1, EEO Program Manager, Ft. Lewis and former Civilian Personnel Officer
(CPO) manager provided covert and false testimony that was used to
initiate a fitness-for-duty examination offer on May 21, 1998.
M1 covertly initiated a fitness-for-duty examination in May 1998.
In April 1998, M1 covertly assisted a discriminatory act for Child
Development Services management and in an April 1998 meeting abused his
authority by pretending to help complainant when he was secretly working
against her.
M1 excluded complainant from the OCI investigation held July 31 through
August 29, 2000, so that M1's involvement as a witness would not be
discovered.
M1 interfered in the processing of complainant's EEO complaint by
withholding evidence and concealing evidence relevant regarding his
participation and that of another witness, E1, from the records of
complainant's case.
M2 and M1 interfered in the processing of complainant's EEO complaint by
excluding her from the OCI investigation held July 31 through August 29,
2000, so that M1's involvement (as a principal agency witness providing
derogatory information) would not be discovered.
M2 and M1 interfered in the processing of complainant's August 27,
1998 EEO complaint by concealing the identity and withholding evidence
of principal agency witnesses by not naming them or providing their
statements to her in any EEO reports.
M3, Coordinator, Child and Youth Services, interfered in the processing
of complainant's August 27, 1998 EEO complaint by concealing the identity
and withholding evidence of principal agency witnesses, M1 and E1.
M3 interfered in the processing of complainant's EEO complaint by
withholding evidence of M1 and E1's involvement in the justification
for a fitness-for-duty examination offer on May 21, 1998.
E1, Civilian Personnel Officer, interfered in the processing of
complainant's August 27, 1998 EEO complaint by concealing her identity
as a principal agency witness and withholding evidence.
E1 did not require any other person to telephone prior to going to
the Civilian Personnel Office to get a job description or employment
information about a job opening; however, she secretly made this a
requirement for complainant by telephoning M2 and requesting that
complainant make a prior telephone call.
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.
In its final decision, the agency dismissed the entire complaint for
untimely EEO contact. We agree. We find complainant should have
reasonably suspected discrimination in connection with the stated
claims no later than October 2001. The record discloses that in
connection with a prior complaint, agency case number AVEURE0004A0110,
EEOC Hearing No. 380-A1-8009X, the agency served complainant with the
"Agency's Revised Proposed Witness List" on October 5, 2001. We observe
that the identity and proposed testimony of agency witnesses M1, M2,
E1, M3 and others is adequately described therein. We therefore find
that complainant should have reasonably suspected discrimination in
connection with these witnesses, their proposed testimony and their
evidence no later than October 2001. Complainant's initial EEO contact
on February 28, 2002 is well beyond the 45-day limit and accordingly,
complainant's claims are untimely. Accordingly, the agency's dismissal
of the complaint pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely
EEO Counselor contact is therefore proper.
We therefore AFFIRM the agency's dismissal of the complaint.
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
March 19, 2003
__________________
Date