0120140936
05-01-2014
Complainant, v. Eric Fanning, Acting Secretary, Department of the Air Force, Agency.
Complainant,
v.
Eric Fanning,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120140936
Agency No. 9N0D13008
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated November 19, 2013, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Custodial Worker at the Agency's Ramstein AFB facility in Ramstein, Germany.
On October 12, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), color (Black), and age (62) when on May 8, 2013, he received lower scores on his 6-month performance appraisal than his white colleagues; and he received a written warning letter during his probationary period addressing his unprofessional behavior.
The Agency dismissed the Complainant for failure to contact an EEO counselor in a timely manner. Complainant contacted an EEO counselor on August 23, 2013. The Agency also dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2), due to the untimely filing of the formal complaint. In his appeal, Complainant states he did not have a reasonable suspicion of discrimination until he learned the appraisal scores of his co-workers "a couple of weeks before' he contacted an EEO counselor.
ANALYSIS AND FINDINGS
EEO Counselor Contact
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.
In the instant case, Complainant states he did not suspect discrimination until after he learned of the scores of his co-workers. Nonetheless, Complainant admits he did not agree with his appraisal when he received it. Complainant does not state specifically when he learned of the scores of others and repeatedly references only "a couple of weeks" before he contacted the EEO counselor. The record also includes information that Complainant had previously complained about his supervisor, and had complained directly to his supervisor about how he had been treated and that he felt he was the only one being treated that way. Complainant told the EEO counselor that he felt his co-workers were being treated better than him.
Based on the above, we find that Complainant had a reasonable suspicion of discrimination when he received his appraisal and the letter of warning on May 8, 2013. As such, his EEO Counselor contact of August 23, 2013, was untimely.
Formal Complaint
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. � 1614.106, which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving notice of the right to do so.
The record contains a signed statement from Complainant acknowledging that he received the notice of right to file on September 26, 2013, and that he had fifteen (15) days to file his formal complaint. Complainant called the EEO office on October 11, 2013, asking about the filing times. He was told he had to file by midnight that day. Complainant filed his complaint after midnight, on October 12, 2013, which is beyond the limitation period. Although he states he had some problems faxing his complaint, he provides no proof of such. On appeal, Complainant has not offered adequate justification to warrant an extension of the time limit for filing the complaint.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
May 1, 2014
__________________
Date
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0120140936
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120140936