0120072557
08-03-2009
Caulton D. Allen, Complainant, v. Stuart J. Ishimaru, Acting Chair, Equal Employment Opportunity Commission1, Agency.
Caulton D. Allen,
Complainant,
v.
Stuart J. Ishimaru,
Acting Chair,
Equal Employment Opportunity Commission1,
Agency.
Appeal No. 0120072557
Agency No. 200700004
DECISION
On May 4, 2007, complainant filed an appeal from the agency's March 29,
2007 final decision concerning his equal employment opportunity (EEO)
complaint alleging 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the agency's final
decision.
ISSUE PRESENTED
The issue on appeal is whether an extension of the 45-day time period
for initiating EEO counselor contact should be granted pursuant to 29
C.F.R. � 1614.105(a)(2).
BACKGROUND
Complainant is employed as an Equal Opportunity Specialist with the
Department of Veterans Affairs (VA). At the time of events relevant to
this complaint, complainant had filed an EEO complaint against the VA,
which was pending a hearing in front of an Administrative Judge in the
agency's Washington Field Office (WFO), located in Washington, D.C.
In 2004, complainant applied for an Investigator position, vacancy
announcement number DEU-2004-0017, in the agency's WFO. This position
was open from March 4, 2004, through March 17, 2004. Complainant was
placed on the list of eligible candidates and subsequently was interviewed
for the position. The record contains a form letter dated August 24,
2004, which states that complainant was not selected for the position.
Complainant denies ever receiving this letter, alleges that the letter
in the record is forged and created after-the-fact, and claims the agency
purposely did not notify him of his non-selection in an attempt to cover
up discrimination.
Complainant alleges that in 2005, he applied for an Equal Employment
Specialist2 position, vacancy announcement number EOINV-2005-0001, in
the agency's Office of Equal Opportunity (OEO), in Washington, D.C.
This position was open from April 26, 2005, through June 9, 2005.
According to the agency's Office of Human Resources (OHR), there
is no indication that complainant ever applied for this position.
Complainant again asserts that the agency purposely did not notify him
of his non-selection in an attempt to cover up discrimination.
In September 2006, complainant contacted the agency's OHR regarding an
Investigator position that had been advertised in the agency's Baltimore
Field Office. Complainant inquired via e-mail about the prior two
positions he applied for and asked for information about the individuals
who were selected for the positions. Complainant asserts that the OHR
employee failed to reply to his e-mail and provide him with information
about the selectees, and that is when he became suspicious that he had
been retaliated against in the non-selections because of his pending
EEO hearing against the VA.
On October 20, 2006, complainant contacted the agency's OEO to speak with
an EEO counselor. Subsequently, on December 29, 2006, complainant filed
an EEO complaint alleging that he was discriminated against in reprisal
for prior protected EEO activity when:
1. In 2004, he was not selected for an Investigator position, vacancy
announcement number DEU-2004-0017, in the agency's Washington Field Office
(WFO); and
2. In 2005, he was not selected for an Equal Employment Specialist
position, vacancy announcement number EOINV-2005-0001, in the agency's
Office of Equal Opportunity (OEO).
On May 4, 2007, the agency dismissed the complaint pursuant to 29
C.F.R. �1614.105(a)(1) for failure to initiate contact with an EEO
counselor within 45 days of the date of the matter alleged to be
discriminatory. The agency further found that complainant did not
establish that an extension of the 45-day time period was warranted.
CONTENTIONS ON APPEAL
Neither party raises new contentions on appeal.
ANALYSIS AND FINDINGS
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. However, the agency or the Commission shall extend the
45-day time limit when a complainant shows that he or she did not know and
reasonably should not have known that the discriminatory action occurred.
29 C.F.R. � 1614.105(a)(2). The Commission has adopted a "reasonable
suspicion" standard (as opposed to a "supportive facts" standard) to
determine when the 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.
The record supports a finding that complainant knew or should have
known of the alleged discrimination prior to his communication with
the agency's OHR in September 2006. Specifically, the record contains
a form letter that was e-mailed to complainant on August 24, 2004,
informing him that he was not selected for the Investigator position.
The e-mail address contained on the form is the address that complainant
input into the on-line recruiting system. Complainant asserts that
the letter was forged and created after he spoke with an EEO Counselor,
and that he never received this notification.
Even assuming that complainant's assertion that he never received this
notification is correct, we find that complainant reasonably should have
suspected that he was discriminated against prior to September 2006.
Complainant was interviewed for the Investigator position in April 2004,
almost twenty-nine months prior to his contact with the agency's OHR.
Further, complainant asserts that he applied for the Equal Employment
Specialist position in May 2005, and was never informed that he was
not selected for the position. Assuming for the sake of argument that
complainant actually applied for the position, it took complainant
sixteen months to contact the agency to inquire about the status of
the position. We note that the Commission has held that a complainant
must act with due diligence in the pursuit of a claim or the doctrine of
laches may be applied. See Lopez v. Department of State, EEOC Appeal
No. 01A31286 (April 21, 2003), citing O'Dell v. Department of Health
and Human Services, EEOC Request No. 05901130 (December 27, 1990).
Complainant failed to provide any explanation to justify his delay,
and we find that he failed to act with reasonable diligence regarding
his non-selections.
Additionally, complainant asserts that he had no reason to believe that he
was discriminated against until an OHR employee failed to respond to his
e-mail and provide him with information about the individuals selected
for the positions. The Commission will look at what, if anything, a
complainant has learned between the date of the original incident and
the event which first triggers the complainant's suspicion in making
a determination as to whether the complainant meets the "reasonable
suspicion standard." See Rowe v. Department of Air Force, EEOC Appeal
No. 01973587 (July 10, 1998),citing Fowler v. Postmaster General, EEOC
Request No. 01952036 (1996). We find that the OHR employee's failure
to respond to complainant's e-mail, alone, is not sufficient to raise
a reasonable suspicion of discrimination. The record does not contain
any evidence that would indicate that complainant learned anything in
the 45 days prior to his EEO Counselor contact that he was not already
aware of for the previous sixteen to twenty-nine months. Therefore,
we find that complainant failed to establish that an extension of the
45-day time period is warranted.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
dismissal of the complaint.
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:
______________________________
Stephen Llewellyn
Executive Officer
Executive Secretariat
August 3, 2009
Date
1 In the present matter, the Equal Employment Opportunity Commission
is both the respondent agency and the adjudicatory authority. The
Commission's adjudicatory function is separate and independent from those
offices charged with in-house processing and resolution of discrimination
complaints. For purposes of this decision, the term "Commission" or "EEOC"
is used when referring to the adjudicatory authority and the term "agency"
is used when referring to the respondent party in this action. The Acting
Chair has recused himself from participation in this decision.
2 Complainant refers to this position as an "Investigator position,"
but the record reveals the actual title for this position is Equal
Employment Specialist.
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Washington, DC 20013
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