Anthony R. Terrell, Complainant,v.Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionJan 30, 2009
0120083677 (E.E.O.C. Jan. 30, 2009)

0120083677

01-30-2009

Anthony R. Terrell, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.


Anthony R. Terrell,

Complainant,

v.

Henry M. Paulson, Jr.,

Secretary,

Department of the Treasury,

Agency.

Appeal No. 0120083677

Agency No. EEODFS-07-0676-F

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dismissing his 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.

On May 1, 2007, complainant contacted the EEO office, claiming that he was

subjected to discrimination on the basis of reprisal for prior protected

EEO activity. Informal efforts to resolve complainant's concerns were

unsuccessful. On June 21, 2007, complainant filed a formal complaint.

Therein, complainant claimed that he was discriminated against on the

basis of reprisal when on January 17, 2007, he became aware that he was

erroneously charged with LWOP, and management refused to provide him

his original ETR (Employee Time Report).

In its final decision dated July 31, 2008, the agency dismissed the

complaint on the grounds of untimely EEO Counselor contact. Specifically,

the agency determined that complainant learned of the discriminatory

LWOP charges on January 17, 2007, and therefore, determined that his EEO

Counselor contact on May 1, 2007, was beyond the applicable time period

for seeking counseling. Furthermore, the agency noted that complainant

had engaged in prior protected activity and was aware of the time limits

for initiating EEO Counselor contact.

The agency also dismissed the complaint on the grounds of mootness.

Specifically, the agency found that complainant's LWOP charge was a pay

entry error, and that it was corrected before complainant entered EEO

counseling. Because complainant did not requested compensatory damages,

the agency concluded that complainant's complaint was therefore rendered

moot.

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.

Upon review of the matter, the Commission finds that the agency properly

dismissed complainant's complaint. Complainant admits that he became

aware that he was improperly charged with LWOP on January 17, 2007.

The record reflects that complainant initiated EEO Counselor contact on

May 1, 2007, well beyond forty-five days after he knew of the improper

LWOP charge.

We noted that although complainant asserts that he wanted a copy of

the original ETR in order to show that the LWOP charge was made by his

supervisor, and thus it constituted retaliation, the Commission has

found that since the limitation period for contacting an EEO counselor

is triggered by the reasonable suspicion standard, waiting until one

has "supporting facts" or "proof" of discrimination before initiating

a complaint can result in untimely EEO Counselor contact. See Bracken

vs. United States Postal Service, EEOC Request No. 05900065 (March 29,

1990). Therefore, the Commission found that complainant waited beyond

the forty-five-day limitation period when he contacted an EEO Counselor

on May 1, 2007.

Moreover, we note that complainant's allegation that he waited a long

period and never received the original ETR from management, does not

toll the time limits for contacting an EEO Counselor. The Commission

has consistently held that the utilization of agency procedures, union

grievances, and other remedial processes does not toll the time limit for

contacting an EEO Counselor. See Ellis v. United States Postal Service,

EEOC Appeal No. 01992093 (November 29, 2000).

Therefore, we find that complainant initiated untimely EEO Counselor

contact for his complaint and failed to present any arguments that

would warrant a waiver or extension of the applicable time limits.

Accordingly, the agency's final decision dismissing complainant's

complaint is AFFIRMED.1

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 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 (S0408)

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 (Z1008)

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

January 30. 2009

__________________

Date

1 Because complainant's complaint is properly dismissed on the grounds

of untimely EEO Counselor contact, we will not determine whether it was

properly dismissed on the grounds of mootness.

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0120083677

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120083677