0120103547
09-13-2012
Donna M. Tong, Complainant, v. Leon E. Panetta, Secretary, Department of Defense (Defense Contract Management Agency), Agency.
Donna M. Tong,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense
(Defense Contract Management Agency),
Agency.
Appeal No. 0120103547
Agency No. YM100042
DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated July 28, 2010, dismissing her 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Computer Engineer at the Agency's facility in Orlando, Florida. On July 1, 2010, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of her race (Asian), sex (female), and age (56) when: (1) on January 20, 2010, management gave her a rating of "3" for the critical job element of "cooperation/teamwork" in her FY09 performance appraisal; and (2) her supervisor did not follow directions as stated in a mediation session pertaining to an informal EEO complaint.
The Agency dismissed claim (1), pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO counselor contact. The Agency also dismissed claim (2), pursuant to 29 C.F.R. �1614.107(a)(1), for failure to state a claim. On appeal, Complainant argues that the Agency had misidentified her claims. Specifically, Complainant contends that she is alleging that management assigned high-visibility programs and programs with greater promotion potential to less qualified individuals.
ANALYSIS AND FINDINGS
With respect to claim (1), 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 limitation period is triggered under the EEOC Regulations. See 29 C.F.R. �1614.105(a)(2); See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitations period is not triggered until a Complainant should reasonably suspect discrimination, but before all the facts that would support a charge of discrimination have become apparent.
The record discloses that Complainant was informed of her performance appraisal on January 20, 2010, but that she did not initiate contact with an EEO Counselor until April 27, 2010, which is beyond the 45-day limitation period. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. As such, we concur with the Agency's dismissal of claim (1) for untimeliness.
As to claim (2), the record shows that it was dismissed by the Agency for failure to state a claim. We concur with the Agency's dismissal as this claim concerns matters related to a settlement negotiation, and as such, is not the proper subject matter for an EEO complaint. Settlement negotiations, including any statements or proposals, are to be treated as confidential and privileged to facilitate a candid interchange to settle disputes informally. Harris v. Dep't of the Navy, EEOC Request No. 05941002 (Mar. 23, 1995).
Finally, although Complainant contends that the Agency incorrectly framed the allegation in claim (2), a review of the record shows that Complainant's formal complaint precisely mirrors the Agency's articulation of the claim. Accordingly, we find that the Agency properly dismissed claim (2).
CONCLUSION
The Agency's final decision dismissing the instant complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
September 13, 2012
__________________
Date
2
0120103547
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103547