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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