Ashok K. Savla, Complainant,v.William S. Cohen, Secretary, Department of Defense, (Defense Contract Audit Agency), Agency.

Equal Employment Opportunity CommissionDec 28, 2000
01A10035 (E.E.O.C. Dec. 28, 2000)

01A10035

12-28-2000

Ashok K. Savla, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Contract Audit Agency), Agency.


Ashok K. Savla v. Defense Contract Audit Agency

01A10035

December 28, 2000

.

Ashok K. Savla,

Complainant,

v.

William S. Cohen,

Secretary,

Department of Defense,

(Defense Contract Audit Agency),

Agency.

Appeal No. 01A10035

Agency No. W00-12

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision pertaining to 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.<1> The Commission accepts the

appeal in accordance with 29 C.F.R. � 1614.405.

On November 29, 1999, complainant contacted the EEO office claiming he

was discriminated against when he received a performance appraisal.

Informal efforts to resolve complainant's concerns were unsuccessful.

On June 26, 2000, complainant filed a formal complaint.

On August 31, 2000 the agency issued a decision, noting that because

complainant's complaint was in the form of a memorandum, and some

necessary information was absent, the missing information was taken from

the Counselor's Report and pre-complaint worksheet. The agency framed

the complaint as one based on national origin and sex where:

On August 13, 1999, complainant received a performance appraisal of

exceeds fully successful for the period from July 1, 1998 to June 30,

1999.

The agency also noted that although the EEO Counselor only identified

the above claim and the formal complaint did not identify complainant's

claims, the pre-complaint worksheet made reference to three other

incidents:

On July 23, 1997, complainant's appraisal was upgraded to outstanding;

however, he did not receive a monetary award;

On September 23, 1999, complainant received a response to his informal

grievance from the Branch Manager; and,

On November 9, 1999, complainant received a final decision on his formal

grievance from the Regional August Manager.<2>

Finding that complainant waited more than 90 days after receiving his

performance appraisal before contacting the EEO office, on November 30,

1999, the agency dismissed claim (1) for untimely Counselor contact.

The agency found that complainant had filed a grievance prior to

initiating the EEO process, but noted that filing a grievance does not

toll the time limitation. Further, the agency asserted that even if an

earlier memorandum from complainant, prepared on October 8, 1999, could

be construed as a request for counseling, it was also outside of the

forty-five day time limitation.<3> Regarding the other three incidents,

the agency determined that claim (2) was also untimely raised before an

EEO Counselor, and that claims (3) and (4) failed to state a claim.

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.

The record shows that complainant contacted the EEO office on November 29,

1999, more than forty-five days after the alleged discriminatory event.

On appeal, complainant contends that after receiving the appraisal on

August 13, 1999, he filed an informal grievance. Complainant argues that

�every avenue was taken in a timely manner to resolve the performance

appraisal complaint.� The record shows that prior to contacting the

EEO office, complainant did file an informal grievance, and later a

formal grievance. On November 9, 1999, the agency issued a decision on

the grievance. It is only after the conclusion of the grievance process

that complaint sought EEO counseling. The Commission has consistently

held that the use of the negotiated grievance procedure does not toll

the time limit for contacting an EEO Counselor. Schermerhorn v. United

States Postal Service, EEOC Request No. 05940729 (February 10, 1995).

Therefore, we find the agency's dismissal of claim (1) for untimely

counselor contact was proper.

In its final decision, the agency stated that it is unclear whether

the other incidents described by complainant in his pre-complaint form

were intended as background material for the appraisal claim (claim

(1)) or as independent claims. To the extent that claims (2) - (4)

are construed as independent claims of discrimination, the agency's

decision to dismiss them was proper. As in claim (1), claim (2) was

properly dismissed on the grounds that it was untimely raised with the

EEO Counselor. The alleged event occurred in 1997, and complainant did

not contact the EEO office until late 1999.

Claims (3) and (4) fail to state a claim, as determined by the agency.

These claims relate to the matter raised in claim (1). By receiving

determinations on his informal and formal grievances, complainant has

not suffered a harm or loss regarding a term, condition, or privilege

of his employment that is independent of the harm alleged in claim (1).

Consequently, we find that claims (3) and (4) fail to state a claim.

See Diaz v. Department of the Air Force, EEOC Request No. 05931049

(April 21, 1994).

Accordingly, the agency's decision to dismiss the complaint was proper

and is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

December 28, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply

to all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply the

revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov..

2The Commission notes that the agency decision did not number the first

claim, regarding the appraisal, but did number the other three incidents.

For clarification we number all four claims in our decision.

3The record reflects that prior to complainant's EEO contact in November

1999, complainant prepared a memorandum for an EEO official dated October

8, 1999. Therein, complainant stated that he wanted to �file a grievance�

regarding his performance rating, as he felt discriminated against when

he had received a response on this matter from an agency manager.