Cecelye Y. Moore, Complainant,v.Donald H. Rumsfeld, Secretary, Department of Defense, (Army & Air Force Exchange Service) Agency.

Equal Employment Opportunity CommissionMar 15, 2005
01a51011 (E.E.O.C. Mar. 15, 2005)

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