01993999
11-05-1999
David Cuffee, Appellant, v. Janet Reno, Attorney General, Department of Justice, Agency.
David Cuffee, )
Appellant, )
)
v. ) Appeal No. 01993999
) Agency No. I967068
Janet Reno, )
Attorney General, )
Department of Justice, )
Agency. )
______________________________)
DECISION
On April 26, 1999, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) issued on January 13, 1999, pertaining
to a complaint of unlawful employment discrimination pursuant to Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.
The Commission accepts appellant's appeal in accordance with EEOC
No. 960.001.<1>
On February 20, 1996, appellant initiated contact with an EEO Counselor.
Informal efforts to resolve his concerns were unsuccessful.
Therefore, appellant, on June 28, 1996, filed a formal complaint
alleging that he was the victim of unlawful employment discrimination
on the basis of his race (black) and other (not specified). Therein,
appellant alleges that white employee's are
favored over others and that deportation officers are treated differently
than detention officers.
On January 13, 1999 the agency issued a final decision . Therein,
the agency determined that appellant's complaint was comprised of eight
allegations, which were identified in the following fashion:
1. On March 5, 6, 7 and 13, 1996 and April 2, 3, and 25, 1996, after
you completed an 8p.m. to 5a.m. shift, you were required to work the
next shift that commenced at 8a.m. on the same day;
2. You were forced to work overtime between September 7, 1993 and April
11, 1996 under Administratively Uncontrollable Overtime (AOU) with no
regard to the Administrative Manual, therefore you were not provided
with the opportunity to work overtime under the 45 Act;
3. On August 7, 1995, while in a government van, you found a tape of
your supervisors, discussing you and two co-workers in a negative manner.
The tape included discussions on how to avoid hiring anymore minorities
in the Philadelphia Office;
4. You were verbally reprimanded for the following:
A. Deporting a detainee without his property in May 1995;
B. Not putting away detainee property in November 1995;
5. In February 1995, the Assistant District Director of Detention and
Deportation told you that you and a co-worker would not be reimbursed
for towing because it was your fault the vehicle was towed;
6. In September 1995, your supervisor informed you that Orders to Show
Cause (OSC) should not be faxed any longer, but one week later Deportation
Officers were allowed to fax OSC forms;
7.While on assignment, during the period January 12, 1994 through October
13, 1995, you were required to pay for tolls although the service paid
for the tolls of other Deportation Officers;
8. You were not selected for the following positions:
A. Deportation Officer under vacancy announcement number ER OC 94-07
(PHI). You were never informed of your non-selection; and
B. Special Agent under vacancy announcement number ER MP & RP 92-002
(PHI). You were informed of your non-selection on May 29, 1992.
The agency dismissed allegations three thru eight for failing to initiate
timely contact with an EEO Counselor. Specifically, the agency found
that allegations one thru eight occurred in August 1995 and earlier and
that appellant's initial EEO contact in February 20, 1996, was more than
forty-five days after the matters alleged purportedly occurred.
Appellant, by letter, on or about March 18, 1998, provided the agency with
explanations as to why he was untimely in contacting an EEO Counselor
for allegations three thru eight. Therein, appellant alleges that he
did not initiate timely contact for the following
reasons: he was working long hours, he was unable to research how to
prove his complaint, fear of reprisals, he was transferred, and the
impact of his filing on other minorities he was supervising.
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 she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Based on our review of the record, this Commission finds that appellant
failed to contact an EEO Counselor within the appropriate time frame. This
Commission is not persuaded by appellant's argument that he "let it go"
for fear of reprisals. We note that fear of reprisal is not sufficient
grounds for failing to use due diligence in the pursuit of a claim
of discrimination. See Wallace v. Department of Justice, EEOC Appeal
No. 01922669 (December 21, 1992). Furthermore, the Commission is not
persuaded by the arguments that he was working long hours, could not
conduct research to prove his complaint, he was transferred and how filing
a complaint would impact his subordinates. Therefore, appellant's failure
to act with due diligence in the pursuit of her allegations precludes
his Counselor contact from being timely with respect to the dismissed
allegations. See O'Dell v. Department of Health and Human Services,
EEOC Request No. 05901130 (December 27, 1990).
Accordingly, the agency's decision to dismiss allegations three
thru eight for failure to initiate contact with an EEO Counselor in a
timely fashion was proper and 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. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. 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 to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. 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.
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:
November 5, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
1Since the agency did not supply a copy of a certified mail
return receipt or any other material capable of establishing
the date appellant received the agency's final decision, the
Commission presumes that appellant's appeal was filed within
thirty (30) days of receipt of the agency's final decision. See,
29 C.F.R. �1614.402.