James L. Klinger, Complainant,v.Robert M. Gates, Secretary, Department of Defense, (Defense Logistics Agency), Agency.

Equal Employment Opportunity CommissionSep 18, 2009
0120081110 (E.E.O.C. Sep. 18, 2009)

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