0120081110
09-18-2009
James L. Klinger, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
James L. Klinger,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 0120081110
Agency No. DLAN-07-0655
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 6, 2007, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
In his complaint, complainant alleged that he was subjected to
discrimination in reprisal for prior protected EEO activity when:
1. On July 7, 2007, complainant became aware that he was not given the
opportunity to be reassigned back to the Defense Distribution Depot
Susquehanna (DDSP) New Cumberland site, but DDSP management recruited
for a GS-12 position under JOA Number DDC-06-2726; and,
2. The agency assigned complainant to the DDSP Mechanicsburg site rather
than the DDSP New Cumberland site; therefore, complainant was not able to
receive the higher locality pay paid to employees at the New Cumberland
site.
In its final decision, the agency dismissed claim 1 on the basis that
it was initiated by untimely EEO counselor contact, and claim 2 on
the basis that it stated the same claim raised in a previous complaint
(Agency No. JQ-05-059) filed on May 31, 2005.
On appeal, complainant maintains that although he filed an EEO complaint
on the same issue as claim 2, he hopes management will offer him the job
in New Cumberland, which has a higher locality pay. Complainant stated
that instead of offering him the position at New Cumberland, management
filled a position there by promoting another person into the position.
Untimely EEO Counselor Contact
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 this case, claim 1 concerns an agency recruitment that resulted
in a selection on October 10, 2006. Complainant did not initiate EEO
counselor contact on this matter until August 24, 2007, which is well
beyond the 45-day time limit. Complainant maintains that he did not
suspect discrimination until he reviewed his retirement option on July
7, 2007. However, we determine that complainant should have acquired a
"reasonable suspicion" of discrimination well before July 7, 2007, since
the pertinent selection occurred on October 10, 2006. Complainant has
not made any argument that would warrant a waiver of the applicable
time limits. Thus, we find that the agency properly dismissed claim on
the basis that it was initiated by untimely EEO counselor contact.
Same Claim raised in a Prior Complaint
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that is
pending before or has been decided by the agency or Commission.
Claim 2 concerns the allegation that the agency assigned complainant to
the DDSP Mechanicsburg site rather than the DDSP New Cumberland site,
resulting in complainant receiving a lower locality pay. On appeal,
complainant acknowledges that claim 2 is the same matter on which he
previously filed an EEO complaint (Agency No. 070-05), but complainant
nonetheless maintains that he hopes management will offer him a position
in New Cumberland. Upon review, we find that the agency properly
dismissed claim 2 because it is the same matter contained in complainant's
prior EEO complaint.
Accordingly, the Commission AFFIRMS the agency's final decision dismissing
complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
_____9/18/09______________
Date
2
0120081110
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120081110