01A55781
02-27-2006
Dennis E. Fouts, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Dennis E. Fouts,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A55781
Agency No. 200J05842005100
Hearing No. 260-2005-00164X
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 2, 2005, dismissing his complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. 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 his age (D.O.B. 01/25/48) when he did not
receive a promotion to the GS-6 level. The record reflects that in June of
2004, complainant thought his supervisor was "fighting" with the Department
of Human Resources (HR) to obtain the GS-6 promotion. However, on August
3, 2004, complainant learned that his supervisor had not pursued the GS-6
promotion (complainant's supervisor failed to submit a 52 form to HR). On
November 3, 2004, a co-worker prevailed in an EEO complaint and received a
GS-6 promotion. After hearing of his co-worker's promotion on November 15,
2004, complainant contacted an EEO Counselor.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). The AJ dismissed the complaint as untimely, pursuant to 29
C.F.R. �� 1614.107(a)(2) and 109(b), as complainant failed to contact an
EEO Counselor within 45 days of the alleged discriminatory action.
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 Ball v. United States Postal Service, EEOC Request
No. 05880247 (July 6, 1988). 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 must 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.
According to the record, complainant received notice on August 3, 2004,
that his supervisor had not submitted complainant's Form 52 required for GS-
6 promotion. However, complainant waited until November 15, 2004, to
contact an EEO Counselor. Based on a review of the record, we find that
complainant should have reasonably suspected discrimination when he became
aware that his supervisor had not pursued his promotion by submitting a
Form 52.
After a review of the record, we concur with the AJ's dismissal of the
complaint as the record reflects that complainant failed to contact an EEO
counselor within the 45 days required under 29 C.F.R � 1614.107(a)(2).
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
February 27, 2006
__________________
Date