01a60265
03-31-2006
David L. Spock v. Department of the Air Force
01A60265
03-31-06
.
David L. Spock,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A60265
Agency No. 6R0M05005
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO Counselor contact. In his complaint, complainant alleged that he
was subjected to discrimination on the basis of disability when:
On July 28, 2003 and March 11, 2004, he was assigned additional duties
and previously reassigned tasks were assigned back to him;
Beginning in July 2003 and continuing through April 2004, he was subjected
to continuing non-sexual harassment;
In January 2004, he was denied a within grade step increase; and
Beginning April 19, 2004, he was not provided an answer regarding his
request for reasonable accommodation after Gate 2 of Dobbins Air Reserve
Base was closed indefinitely for renovations and new construction.
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 he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The record discloses that the most recent alleged discriminatory event
occurred on April 19, 2004, but complainant did not initiate contact with
an EEO Counselor until September 8, 2004, which is beyond the forty-five
(45) day limitation period. Complainant alleges that he was unaware
of the agency's EEO program or of the time limitation for contacting an
EEO Counselor. After a thorough review of the record, however, we find
that the agency has shown that complainant was provided with actual or
constructive knowledge of the EEO process, specifically including the
forty-five day time period. The agency has submitted copies of an EEO
poster containing relevant time frames for contacting an EEO Counselor
which was displayed at complainant's workplace. In addition, the agency
has provided a sworn statement from the agency employee responsible
for maintaining the bulletin board where the EEO information is posted.
Therein she states that for the past ten years she has maintained the
bulletin board with up-to-date EEO and other information. Moreover,
she indicates that she has observed complainant reading things on the
bulletin board and on one occasion asked complainant if he needed help
with anything.
On appeal, complainant has presented no persuasive arguments or evidence
warranting an extension of the time limit for initiating EEO Counselor
contact.
Therefore, we find that complainant's September 8, 2004 EEO Counselor
contact was untimely, and that he has failed to provide sufficient
justification for tolling or extending the time limit for contacting
an EEO Counselor. Accordingly, the agency's final decision dismissing
complainant's complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_____03-31-06_____________
Date