01992511
10-28-1999
Lynne R. Dorsey, Appellant, v. William S. Cohen, Secretary, Department of Defense, Agency.
Lynne R. Dorsey v. Department of Defense
01992511
October 28, 1999
Lynne R. Dorsey, )
Appellant, )
)
v. ) Appeal No. 01992511
) Agency No. 98DIA089
William S. Cohen, )
Secretary, )
Department of Defense, )
Agency. )
)
DECISION
The Commission finds that the agency's January 5, 1999 decision dismissing
a portion of appellant's complaint on the basis of untimely EEO counselor
contact is proper pursuant to the provisions of 29 C.F.R. �1614.107(b).
The record shows that appellant filed two formal complaints of
discrimination alleging that she had been discriminated against on the
bases of race (White), religion (Jewish), sex (female), and
reprisal when:
(a) on May 17, 1998, she was issued a personnel action (SF-50) effecting
a management directed reassignment to the position of Special Assistant
in the Defense Intelligence Agency (DIA), Office of General Counsel;
(b) on June 10, 1998, the DIA Director charged into appellant's office
and verbally attacked and intimidated her, and advised members of the
Civilian Personnel Division (her former division) that she had filed a
formal complaint of discrimination and that they should not be intimidated
if they were called as witnesses; the DIA Director misrepresented the
June 10th discussion to the DIA Deputy Director portraying appellant in
a negative manner;
(c)<1> in the 1980's and in the 1992 time frame, appellant was subjected
to anti-Semitic remarks by a DIA manager, who was her second level
supervisor; and
(d) in 1995, DIA management officials applied different personnel
procedures regarding her assignment as Director for Human Resources.
Appellant further alleged that although she had tolerated these actions
in the past, she could not bear or tolerate then any more.
The agency issued a final decision accepting allegations (a) and (b) for
investigation. Allegations (c) and (d) were dismissed on the grounds of
untimely EEO counselor contact. On appeal, appellant does not contest
the agency's untimeliness finding but asks that these allegations be
"included as relevant background evidence".
The Commission applies a "reasonable suspicion" standard to the
triggering date for determining the timeliness of the contact with an
EEO counselor. Cochran v. United States Postal Service, EEOC Request
No. 05920399 (June 18, 1992). Under this standard, the time period for
contacting an EEO counselor is triggered when the complainant should
reasonably suspect discrimination, but before all the facts that would
support a charge of discrimination may have become apparent. Id.;
Paredes v. Nagle, 27 FEP Cases 1345 (D.D.C. 1982).
A review of the record shows that appellant acknowledged that although
she had tolerated discriminatory conduct against her since the 1980's
and in 1995, she could not bear or tolerate such conduct anymore.
Accordingly, appellant was aware of the alleged discriminatory conduct
but did not seek EEO counseling until June 22, 1998. Appellant has not
alleged that she was unaware of her EEO rights or that she was not aware
of the applicable time limits for initial EEO counselor contact.
Based on the foregoing, we find that the agency's decision dismissing
allegations (c) and (d) of the complaint on the grounds of untimely EEO
counselor contact was proper and it is hereby AFFIRMED. The parties
are advised, however, that appellant may use allegations (c) and (d)
as background evidence in support of her claims accepted by the agency
for investigation. See Romero v. Department of the Treasury, EEOC Appeal
No. 01984202 (June 30, 1999).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
10/28/1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 Allegations (c) and (d) were identified by the agency as (a) and (b).
To avoid confusion we have identified them as allegations (c) and (d).