Connie Smalls, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJul 13, 2000
01a01855 (E.E.O.C. Jul. 13, 2000)

01a01855

07-13-2000

Connie Smalls, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Connie Smalls v. Department of the Army

01A01855

July 13, 2000

Connie Smalls, )

Complainant, )

)

v. ) Appeal No. 01A01855

) Agency No. FO9908J0070

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

____________________________________)

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision dated November 16, 1999, dismissing her complaint of unlawful

employment discrimination in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. � 2000e et seq. <1> The appeal is

accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified

at 29 C.F.R. � 1614.405).

The record reveals that on July 26, 1999, complainant filed a formal

complaint claiming that she was the victim of harassment and unlawful

employment discrimination in reprisal for prior EEO activity.

On November 16, 1999, the agency issued a final decision dismissing the

present complaint for untimely EEO Counselor contact and for failure

to state a claim. Therein, the agency defined complainant's claims as

follows:

Continuing harassment and discrimination by not thoroughly investigating

AWOL charge or proposed suspension charge/reprimand, and by not

preventing my supervisor from harassing and retaliating against me; and

Not taking any action when your union representative showed biased

behavior towards you.

With regard to claim one, the agency found that the alleged discriminatory

incident occurred on March 23, 1999, and complainant's initial EEO

Counselor contact on June 23, 1999, was more than forty-five days after

the alleged incident occurred. With respect to claim two, the agency

found that it was outside the purview of the EEO statutes and, therefore,

failed to state a claim.

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.

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 the present case, the Commission finds that the agency properly

dismissed claim one for untimely EEO Counselor contact. The record

reveals that complainant received a notice of suspension on March

23, 1999, after her supervisor purportedly conducted an investigation

concerning her charge of AWOL. On June 23, 1999, complainant initiated

contact with an EEO Counselor concerning the suspension. Clearly,

complainant initiated contact outside the forty-five day limitations

period. Furthermore, on appeal, complainant has not presented any

evidence or argument that would justify either extending or waiving the

limitations period. Accordingly, the agency's decision to dismiss claim

one for untimely EEO Counselor contact was proper and is AFFIRMED.

The Commission has held that an employee cannot use the EEO complaint

process to lodge a collateral attack on another proceeding. See Wills

v. Department of Defense , EEOC Request No. 05970596 (July 30, 1998);

Kleinman v. United States Postal Service, EEOC Request No. 05940585

(September 22, 1994); Lingad v. United States Postal Service, EEOC

Request No. 05930106 (June 25, 1993). In the present case, complainant

alleges that no action was taken when her union representative showed

biased behavior towards her. The proper forum for complainant to have

raised her dissatisfaction with her union representation is with the

union, not through an EEO complaint. Accordingly, the agency's decision

dismissing this claim for failure to state a claim was proper and is

AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

July 13, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date

1On November 9, 1999, revised regulations governing the EEOC's

federal sector complaint process went into effect. These regulations

apply to all federal sector EEO complaints pending at any stage in

the administrative process. Consequently, the Commission will apply

the revised regulations found at 64 Fed. Reg. 37,644 (1999), where

applicable, in deciding the present appeal. The regulations, as amended,

may also be found at the Commission's website at www.eeoc.gov.