Shirley J. Williams, Complainant,v.William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.

Equal Employment Opportunity CommissionMar 28, 2000
01991153 (E.E.O.C. Mar. 28, 2000)

01991153

03-28-2000

Shirley J. Williams, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.


Shirley J. Williams v. Department of Defense

01991153

March 28, 2000

Shirley J. Williams, )

Complainant, )

)

v. ) Appeal No. 01991153

) Agency No. CA-99-001

William S. Cohen, )

Secretary, )

Department of Defense, )

(Defense Logistics Agency), )

Agency. )

____________________________________)

DECISION

On November 24, 1998, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) received by her on

October 26, 1998, 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> In her complaint, complainant

alleged that she was subjected to discrimination in reprisal for prior EEO

activity when she was informed that she was not eligible for a promotion

on March 16, 1998.

The agency dismissed the complaint for untimely counselor contact.

Specifically, the agency found that complainant did not contact a

counselor until August 13, 1998, 154 days after learning that she was

not eligible for promotion.

On appeal, complainant argues that she did not receive the March 16, 1998

notice until October 26, 1998. Complainant also enclosed information

regarding her training. Further, complainant argued that she was denied

leave for discriminatory reasons.

The Counselor's Report, dated September 21, 1998, lists complainant's

initial contact as occurring on August 13, 1998. The record also

includes a memorandum to complainant, dated March 16, 1998, informing

her that was not eligible for promotion because, inter alia, she failed

to successfully complete several training classes. The record also

includes a letter from complainant, dated June 29, 1998, noting that in

March 1998, she was denied a promotion because she had not met training

requirements, and arguing that she be given the promotion now that she

successfully completed the training requirements in early June 1998.

The record also contains e-mails from July 10, 1998 and July 23, 1998,

informing complainant that her requests for leave were denied.

In her formal complaint, dated October 4, 1998, complainant submitted

a statement of several pages concerning the denial of her promotion.

Complainant did not mention the denial of her leave in the complaint.

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.

Complainant contends that she did not receive the notice of promotion

denial until October 26, 1998, but refers to the March 16, 1998 denial

in her June 29, 1998 letter. Further, complainant must have made

arrangements to take the required classes after receiving the March 15,

1998 letter, but before writing the June 29, 1998 letter. Accordingly,

the Commission finds that complainant's counselor contact was untimely.

Finally, we note that on appeal, complainant argues that the agency

discriminatorily denied her leave. This matter was not the subject of the

complaint at issue. Complainant is advised that if she wishes to pursue,

through the EEO process, the additional claims she raised on appeal,

she shall initiate contact with an EEO Counselor within 15 days after

she receives this decision. Cf. Alexander J. Qatsha v. Department of

the Navy, EEOC Request No. 05970201 (January 16, 1998).

CONCLUSION

Accordingly, the agency's dismissal is 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

March 28, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date

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.