0520140013
04-04-2014
Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Request No. 0520140013
Appeal No. 0120132389
Agency No. ARCCAD13MAR00639
DENIAL
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120132389 (September 23, 2013). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c).
BACKGROUND
In the appellate decision, Complainant alleged that the Agency subjected him to discrimination on the bases of national origin, age, and in reprisal for prior protected activity when he was not interviewed or selected for the position of Construction Control Representative. The Agency dismissed the complaint for untimely EEO Counselor contact. Complainant appealed the decision arguing that he had no reasonable suspicion to suspect discrimination based on the email he received which notified him that he was not selected for the position. The Commission affirmed the dismissal of the complaint finding that the alleged discriminatory event occurred on December 6, 2012, but Complainant did not initiate contact with an EEO Counselor until March 1, 2013, which was beyond the forty-five (45) day limitation period. The decision determined that Complainant presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
REQUEST FOR RECONSIDERATION CONTENTIONS
In his request for reconsideration, Complainant maintains that he did not have a reasonable suspicion of discrimination until he found out more about who was selected for the position. He argues that he could not have formed any suspicion based on the email that he received. Complainant argues that to find otherwise, would require immediate action by applicants before they had access to any information.
ANALYSIS AND FINDINGS
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to deny the request. We find that Complainant has failed to show that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Under the reasonable suspicion standard, the time limitation is triggered when a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). In the instant case, we find it reasonable for the previous decision to conclude that Complainant, at some point prior to the 45-day period that preceded his March 1, 2013 EEO Counselor contact, suspected discrimination because of his FOIA request for additional information regarding the selection. He was under no obligation to wait until he had assembled all the information that would support his case. Accordingly, we find the decision in EEOC Appeal No. 0120132389 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
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
____4/4/14______________
Date
2
0520140013
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520140013