Debra A. Dunn, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionApr 20, 2000
01a01062 (E.E.O.C. Apr. 20, 2000)

01a01062

04-20-2000

Debra A. Dunn, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Debra A. Dunn, )

Complainant, )

)

v. )

) Appeal No. 01A01062

Richard J. Danzig, ) Agency No. 9867001030

Secretary, )

Department of the Navy, )

Agency. )

____________________________________)

DECISION

Complainant filed an appeal with this Commission from a final agency

decision (FAD) pertaining to 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 Commission accepts

the appeal in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)(to be

codified at 29 C.F.R. � 1614.405).

On May 18, 1998, complainant initiated contact with the EEO office

claiming she was discriminated against when she was not selected for the

Supply Technician position, GS-2005-5, Merit Staffing Announcement 10-97.

Informal efforts to resolve complainant's concerns were unsuccessful.

On July 2, 1998, she filed a formal complaint based on reprisal, on

the matter for which she underwent EEO counseling, discussed above.

In her formal complaint, complainant stated that she was not selected

for the Supply Technician position because of an EEO complaint that

she filed against the selecting official.

On August 12, 1998, the agency issued a FAD dismissing the complaint for

untimely EEO Counselor contact. The agency determined that complainant

was notified of her non-selection on April 8, 1997, but that she did not

seek counseling until approximately thirteen months later, in May 1998.

The agency noted that complainant previously filed a complaint against

the selecting official and should therefore have suspected discrimination

at the time of the non-selection in April 1997.

Complainant presents no contentions on appeal.

Volume 64 Fed. Reg. 37,644, 37656 (1999) (to be codified and hereinafter

referred to as 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.

The Commission determines that complainant should have reasonably

suspected discrimination when she was notified of her non-selection, on

April 8, 1997. However, complainant waited over a year before contacting

the EEO office. The Counselor's Report indicates that on April 29, 1998

complainant allegedly discovered that the selecting official had provided

the selectee with information, prior to the selectee's interview, that

purportedly provided the selectee with an unfair advantage. Complainant

also told the Counselor that she heard, from an unnamed individual,

that the selecting official had commented that �anyone who had filed a

complaint against him [the selecting official] would not get the job.�

The Commission has found that since the limitation period for contacting

an EEO Counselor is triggered by the reasonable suspicion standard,

waiting until one has �supportive facts� or �proof� of discrimination

before initiating a complaint can result in untimely Counselor contact.

See Bracken v. U.S. Postal Service, EEOC Request No. 05900065 (March 29,

1990). Further, complainant had previously filed a complaint against

the selecting official, and therefore her suspicions should have been

triggered at the time she learned of her non-selection. We determine

that the agency properly dismissed the complaint for untimely counselor

contact.

Accordingly, the agency's dismissal of the complaint was proper and is

hereby 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:

April 20, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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.