Sheila L. Lay, Complainant,v.Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Finance and Accounting Service), Agency.

Equal Employment Opportunity CommissionNov 16, 2005
01a53957 (E.E.O.C. Nov. 16, 2005)

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.