01a51011
03-15-2005
Cecelye Y. Moore, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Army & Air Force Exchange Service) Agency.
Cecelye Y. Moore v. Department of Defense
01A51011
March 15, 2005
.
Cecelye Y. Moore,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Army & Air Force Exchange Service)
Agency.
Appeal No. 01A51011
Agency No. 04.071
DECISION
Upon review, the Commission finds that complainant's complaint was
dismissed properly pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO Counselor contact. In her complaint, complainant alleged that she was
subjected to discrimination on the basis of disability when on July 11,
2003, she was terminated from her position, and subsequently received
negative job references from the agency, preventing her from securing
new employment.
The record discloses that the most recent occurrence of the alleged
discriminatory incidents was on February 9, 2004; however, complainant
did not initiate contact with an EEO Counselor until April 7, 2004,
which is beyond the forty-five (45) day limitation period. On appeal,
complainant argues that she could not have known of the time limit because
she was not advised of any time limits and that she was never given an
employee handbook, even though she had been promised one when she began
working with the agency. Furthermore, complainant argues that she learned
that the agency discriminated against her during her futile job search.
She states that she kept being rejected for new jobs, so when she called
to inquire why this was happening an employer informed her it was because
the agency gave her a very negative reference. She suggests that it was
only at this point that she learned the agency discriminated against her.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints
of discrimination should be brought to the attention of the EEO
Counselor within forty-five 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 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.
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 Commission finds that complainant lacked due diligence in the
enforcement of her rights. Although she may not have been expressly
made aware of the time limit, she should have known of the deadline, and
thus, she had constructive knowledge that a deadline existed. The agency
attached to its decision dismissing complainant's complaint a copy of the
EEO poster it displays in the human resources office on the first floor
across from the cafeteria and on the fifth floor, as well as an affidavit
from the Human Resources Manager attesting to the existence and visibility
of the poster. See EEO Poster, attached to Final Agency Decision (FAD) as
Enclosure 4; Declaration, attached to FAD as Enclosure 3. The Commission
has repeatedly held that where an agency displays such posters to its
employees in the workplace, the complainant has constructive knowledge
of the limitation period for initiating contact with an EEO Counselor.
See, e.g., Wareham v. United States Postal Serv., EEOC Appeal No. 01A41019
(Mar. 12, 2004) (constructive knowledge imputed where agency submits an
affidavit of a management official describing the location of the EEO
posters, plus a copy of the poster containing the applicable time limit);
Richardson v. Dep't of the Navy, EEOC Appeal No. 01A40402 (Apr. 12, 2004)
(finding that evidence that posters containing the applicable time limit
were displayed at complainant's worksite sufficient to impute constructive
knowledge on complainant).
Accordingly, the agency's final decision dismissing complainant's
complaint is 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
March 15, 2005
__________________
Date