01980183
01-29-1999
Charles M. Gryczko, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency) Agency.
Charles M. Gryczko v. Department of Defense
01980183
January 29, 1999
Charles M. Gryczko, )
Appellant, )
)
v. ) Appeal No. 01980183
) Agency No. XL-97-008
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Logistics Agency) )
Agency. )
)
DECISION
The Commission finds that the agency's September 22, 1997 decision
dismissing appellant's complaint on the basis that appellant failed to
contact an EEO counselor within the 45-day time limit provided by 29
C.F.R.�1614.107(b)is proper.
A review of the record shows that appellant sought EEO counseling on June
2, 1997, alleging that he had been discriminated against on the basis
of sex (male), when on January 16, 1997, he was ordered to move from
Saudi Arabia to Eskan for safety reasons, while a female coworker was
allowed to remain in Saudi Arabia. On appeal, appellant contends that his
complaint is timely because the agency engaged in a continuous violation
from the date he was ordered to move, January 16, 1997, until May 1997,
when he returned to the United States. On appeal, however, appellant
acknowledges that "since it was January 17, 1997, and [female coworker]
was still residing at Villa Number 83, [appellant] concluded that she
was being allowed to remain there ... to add credence to [appellant's]
suspicions, on April 14, 1997, [appellant] heard" the female coworker
state "no, I don't have to move".
The Commission applies a "reasonable suspicion" standard to the triggering
date for determining the timeliness of the contact with an EEO counselor.
Cochran v. United States Postal Service, EEOC Request No. 05920399 (June
18, 1992). Under this standard, the time period for contacting an EEO
counselor is triggered when the complainant should reasonably suspect
discrimination, but before all the facts that would support a charge of
discrimination may have become apparent. Id.; Paredes v. Nagle, 27 FEP
Cases 1345 (D.D.C. 1982). The Commission finds that appellant should have
had a reasonable suspicion of discrimination more than 45 days prior to
his counselor contact. Accordingly, appellant's claim of a continuing
violation is not appropriate. The agency's decision dismissing the
complaint on the basis of untimely EEO counselor contact is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
January 29, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations