01a53957
11-16-2005
Sheila L. Lay, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Finance and Accounting Service), Agency.
Sheila L. Lay v. Department of Defense
01A53957
November 16, 2005
.
Sheila L. Lay,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Finance and Accounting Service),
Agency.
Appeal No. 01A53957
Agency No. DFAS-IN-AS-05-050
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO Counselor contact. In her complaint, complainant alleged that she was
subjected to discrimination on the bases of race (Black), sex (female),
color (Black), and reprisal for prior EEO activity under Title VII of
the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq. when:
she was rendered non-promotable;
her FY 2002 and 2003 appraisal ratings and work assignments were
unjustifiably lowered; and
her requests for high-profile work and leadership opportunities were
consistently ignored.
In its final decision, the agency dismissed complainant's complaint
under 29 C.F.R. �1614.107(a)(1), for raising the same claim pending
before or previously decided by the agency or Commission and under
29 C.F.R. �1614.107(a)(2), for untimely EEO Counselor contact. The
agency found that while complainant did not initiate contact with an
EEO Counselor until October 24, 2004, the discriminatory acts alleged
in the instant complaint occurred long before the forty-five (45) day
limitation period as complainant raised the same issues from the time
period between 2001-2003 in prior complaints against the agency.<1> See
EEOC Appeal No. 01A45908 (January 18, 2005); request for reconsideration
denied, EEOC Request No. 05A50603 (April 29, 2005).
On appeal, complainant makes numerous contentions regarding alleged
deliberate misrepresentations, manipulations, and misdirection by the
agency's EEO office, stating that "the agency deliberately misrepresented
their services and intentions" and provided "misleading counsel".
Complainant also contends that the instant complaint is distinct from
her previous EEO complaints because she is alleging that she was not
selected for a series of positions for which she applied in early 2004.
In her statement on appeal, complainant contends that until September 14,
2004, she had "no reason to suspect that her appraisals and leadership
limitations were the actual reason for the non-selection[s]" but a review
of the record does not support this. The record shows that complainant
began a series of e-mail inquiries into her non-selections and the
reasons for her low resume score on June 2, 2004. Complainant contends
that until she was able to speak with the review panel on September
14, 2004 regarding her non-selection, she "would not have been able to
support or prove arguments concerning her inability to be promoted."The
record indicates that complainant suspected discrimination as early as
June 2004; however, she did not contact an EEO Counselor until October
2004. 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). Moreover, with
respect to complainant's contentions on appeal regarding the actions of
the agency's EEO office, we find that the record does not support the
allegations or indicate that they, in any manner, excuse the untimeliness
of the complaint.
Therefore, we find that complainant presented no persuasive arguments
or evidence warranting an extension of the time limit for initiating EEO
Counselor contact. Accordingly, the agency's final decision dismissing
complainant's complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 16, 2005
__________________
Date
1While complainant does not specify dates
of these incidents in her complaint, on appeal she contends that the
incidents involve discrimination and harassment dating back to 1997.