Clea B. Efthimiadis, Complainant,v.R.L. Brownlee, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionOct 28, 2003
01A32157_r (E.E.O.C. Oct. 28, 2003)

01A32157_r

10-28-2003

Clea B. Efthimiadis, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.


Clea B. Efthimiadis v. Department of the Army

01A32157

October 28, 2003

.

Clea B. Efthimiadis,

Complainant,

v.

R.L. Brownlee,

Acting Secretary,

Department of the Army,

Agency.

Appeal No. 01A32157

Agency No. ARSOCOM02Jul0011

DECISION

Complainant appealed to the Commission from a January 30, 2003 agency

decision dismissing her complaint on the grounds of untimely EEO Counselor

contact. In her complaint, complainant alleged that she was subjected

to discrimination on the basis of age when she was not selected for the

position of an Attorney-Advisor.

In dismissing the complaint, the agency stated in its decision that

complainant was aware in December 2001, that she was not selected for the

position when she submitted a Freedom of Information Act (FOIA) request

concerning the qualifications of the selectee. The agency found that

complainant's contact of an EEO Counselor on July 1, 2002, was untimely.

On appeal, complainant asserts that the agency never notified her,

either orally or in writing, that a selection was made. She also asserts

that she was unaware that she was discriminated against until June 28,

2002, when she received a response to her FOIA request. She stated

that when she made her FOIA request, she did not know a selection

was made. She believed that the selection process was still ongoing

because the Deputy to the Commander told her that the agency was going

to initiate interviews with the top finalists from its list of best

qualified applicants and that he did not know when the interviews would

be conducted or when a final decision would be made.

EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of

discrimination should be brought to the attention of the EEO 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 Ball v. United States Postal Service, EEOC

Request No. 05880247 (July 6, 1988). Thus, the limitations period is

not triggered until a complainant reasonably suspects discrimination,

but before all the facts that support a charge of discrimination have

become apparent.

EEOC Regulation 29 C.F.R. � 1614.105(a)(2) provides that the agency or

the Commission shall extend the time limits when an individual shows that

he or she was not notified of the time limits and was otherwise unaware

of them, that he or she did not know and reasonably should not have

known that the discriminatory matter or personnel action occurred, that

despite due diligence he or she was prevented by circumstances beyond his

or her control from contacting the counselor within the time limits, or

for other reasons considered sufficient by the agency or the Commission.

The record contains a Vacancy Announcement No. EA-01-080XM for the

position of Attorney-Advisor with a closing date of August 21, 2001, for

the position of Attorney-Advisor. The record reveals that a selection was

made for the position on December 12, 2001. Also contained in the record

is complainant's December 7, 2001 FOIA request which was received by the

agency on December 11, 2001. The record indicates that complainant made

status inquiries concerning her FOIA request in February and March 2002.

In a June 28, 2002 electronic mail message, complainant informed the

agency that she had received its May 25, 2002 response to her FOIA request

on June 28, 2002. Complainant contacted an EEO Counselor on July 1, 2002.

Complainant contends that she was not aware of the selection decision

until she received a response to her FOIA request on June 28, 2002.

The agency has failed to show that complainant obtained knowledge of her

non-selection prior to her receipt of the FOIA response on June 28, 2002.

Although the agency asserted in its decision that complainant knew in

December 2001, of her non-selection when she made the FOIA request, the

record establishes that the FOIA request was made by complainant before

an actual selection had been made. In addition, in her FOIA request,

complainant specifically noted that the process for the selection was

still ongoing and that she wanted to see documents and the application

packages submitted by the top four finalists. The Commission has held

that a complainant need not contact an EEO Counselor until after an actual

selection is made. See Cargill v. Social Security Administration, EEOC

Appeal No. 01963122 (Nov. 19, 1996), request for reconsideration denied,

EEOC Request No. 05970276 (May 7, 1998). Accordingly, when complainant

contacted an EEO Counselor on July 1, 2002, her contact was timely.

Accordingly, the agency's decision dismissing the complaint is REVERSED

and the complaint is REMANDED to the agency for further processing in

accordance with the Order herein.

ORDER (E0900)

The agency is ordered to process the remanded claims in accordance with

29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant

that it has received the remanded claims within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue

to complainant a copy of the investigative file and also shall notify

complainant of the appropriate rights within one hundred fifty (150)

calendar days of the date this decision becomes final, unless the matter

is otherwise resolved prior to that time. If the complainant requests a

final decision without a hearing, the agency shall issue a final decision

within sixty (60) days of receipt of complainant's request.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

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 (R0900)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. In the alternative, you may file a

civil action after one hundred and eighty (180) calendar days of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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

October 28, 2003

__________________

Date