Linda J. Finley, Complainant,v.Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency.

Equal Employment Opportunity CommissionOct 7, 2003
01A34168_r (E.E.O.C. Oct. 7, 2003)

01A34168_r

10-07-2003

Linda J. Finley, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency.


Linda J. Finley v. Department of Defense

01A34168

October 7, 2003

.

Linda J. Finley,

Complainant,

v.

Donald H. Rumsfeld,

Secretary,

Department of Defense,

(Defense Logistics Agency),

Agency.

Appeal No. 01A34168

Agency No. JQ-03-042

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.

On February 10, 2003, complainant initiated EEO Counselor contact.

Informal efforts to resolve her concerns were unsuccessful.

In her complaint filed on March 20, 2003, complainant alleged that she was

subjected to discrimination on the bases of race (African-American), sex

(female), and age (D.O.B. 6/21/50) when on February 7, 2003, she learned

that a white male who had been with the agency for six months was selected

for a Materials Handler, WG-6907-05 permanent position advertised under

Job Opportunity Announcement Number DL128144, for which she had applied,

but had been rated ineligible and was not referred for consideration.

The record discloses that the alleged discriminatory event occurred on

January 30, 2002 (complainant was informed that she was not eligible for

the subject position), but that complainant did not initiate contact

with an EEO Counselor until February 10, 2003, which is beyond the

forty-five (45) day limitation period. On appeal, complainant asserts

that she could not pursue the EEO complaint process until February 7,

2003, when she met with employees from other warehouses and learned

that a white male who had been with the agency for six months was

selected for the subject position, although she was not eligible for

the subject position. The Commission notes, however, that as early as

August 2002, complainant requested that an agency personnel staffing

specialist provide her with information regarding the circumstances

attendant her non-selection; and that by letter dated August 9, 2002,

a personnel staffing specialist responded to her request by sending her

a copy of a recruitment bulletin for the subject position, as well as

a copy of complainant's responses to questions listed on the bulletin.

The record supports a determination that complainant had, or should have

had, a reasonable suspicion of unlawful employment discrimination more

than forty-five days prior to her initial EEO contact.

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 Ball v. United States Postal

Service, EEOC Request No. 05880247 (July 6, 1988). Thus, the 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. Complainant has 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

October 7, 2003

__________________

Date