01a03652
07-20-2000
Bobby G. Davis, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Bobby G. Davis v. Department of the Army
01A03652
July 20, 2000
.
Bobby G. Davis,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A03652
Agency No. BKHBFO-98-0710230
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dismissing his complaint of unlawful employment discrimination
brought under Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.; and Section 501 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1>
We accept the appeal pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405).
Prior to filing the instant complaint, complainant contacted the EEO
office on May 11, 1998. However, EEO counseling was unsuccessful, and
complainant filed a formal complaint on August 6, 1998. In his complaint,
complainant alleged that the agency discriminated against him on the
bases of age, disability, and reprisal when from 1982 through 1994, he was
subjected to harassment and denied many promotions/transfers, culminating
in his constructive discharge in October 1994. Complainant further
claimed that he raised these matters with EEO counselors in 1993 and 1994,
but that they refused to allow him to initiate the EEO process.
The agency dismissed the complaint in a final decision dated August 17,
1998, for untimely EEO Counselor contact, using the May 11, 1998, date
as the initial contact date. Complainant appealed this determination
to the Commission. The Commission remanded the case to the agency to
obtain affidavits from the EEO Counselors identified by complainant as
those he contacted in 1993 and 1994, in order to ascertain whether this
contact occurred as alleged by complainant. Davis v. Department of the
Army, EEOC Appeal No. 01986551 (September 3, 1999).
The agency completed the action ordered by the Commission, and issued
its decision on March 13, 2000. The agency found that the affidavit
testimony confirmed that although complainant spoke with an EEO official
and two EEO Counselors, as well as other management officials, he failed
to indicate a desire to pursue the EEO process. Accordingly, the agency
again dismissed the complaint for untimely EEO Counselor contact.
On appeal, complainant argues that a copy of his letter to an
EEO management official, dated June 16, 1994, as well as copies of
correspondence to his Senator, during the pertinent time, prove that
he established timely EEO Counselor contact. Complainant additionally
repeats that the EEO official and Counselors refused to engage in the
EEO process with him, and would not permit him to proceed.
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999) (to be
codified and hereinafter referred to as 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 he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Here, we find that the affidavit testimony of the identified EEO official
and Counselors confirms the contacts alleged by complainant. However,
this testimony consistently reflects that although complainant expressed
his dissatisfaction at being denied a transfer, he failed to further
pursue the EEO process despite being informed of the procedure for doing
so, and that he never communicate a desire to file an EEO complaint.
Each party who prepared an affidavit had the impression that complainant
was, in essence, venting his frustrations in contacts with them, but
nothing more. Furthermore, although his June 16, 1994, letter to
the EEO official confirms a telephone conversation between the two,
and reflects complainant's belief that he may have been discriminated
against, we find that it does not communicate a desire to pursue the
EEO process or file an EEO complaint.
The Commission has held that EEO Counselor contact for purposes of
tolling the time limit requires at a minimum that a complainant intend to
pursue EEO counseling when the complainant initiates EEO contact. Snyder
v. Department of Defense, EEOC Request No. 05901061 (November 1, 1990);
Mitchell v. Department of Commerce, EEOC Appeal No. 01934119 (March 4,
1994).
In this case, the Commission determines that the affidavit testimony
consistently reveals that although complainant made �contact� numerous
times, he did not do so with the requisite intent to pursue his concerns
any further in the EEO process. According to the affidavit testimony,
complainant was informed several times of the need to complete certain
paperwork to formally initiate the EEO process, but he never asked to
do so.
Therefore, for the reasons stated herein, we find that the agency
properly DISMISSED the instant complainant for untimely EEO contact,
and we AFFIRM the agency's decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
July 20, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the 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 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.