Donald Knowles, Appellant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionOct 5, 1999
01991729 (E.E.O.C. Oct. 5, 1999)

01991729

10-05-1999

Donald Knowles, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Donald Knowles v. Department of the Navy

01991729

October 5, 1999

Donald Knowles, )

Appellant, )

) Appeal No. 01991729

v. )

) Agency No. 99-65923-0004

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

)

DECISION

INTRODUCTION

Appellant filed an appeal with this Commission from a final agency

decision concerning his complaint of unlawful employment discrimination

in violation of�501 of the Rehabilitation Act of 1973, as amended,

29 U.S.C. �791 et seq. The appeal is accepted in accordance with EEOC

Order No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed a portion

of appellant's complaint for untimely contact with an EEO Counselor.

BACKGROUND

Appellant filed a formal complaint on December 4, 1998, alleging

discrimination on the basis of physical disability (blood and kidney

disease) when,

(a) on September 15, 1998, management failed to accommodate his medical

restrictions, but accommodated others who were similarly situated;

(b) on August 18, 1998, he was denied advance sick leave;

(c) on July 30, 1998, the health clinic placed him on medical restrictions

without performing a physical; and

(d) on July 30, 1998, when he was denied advance sick leave.

In its final decision, the agency dismissed the last two allegations

pursuant to 29 C.F.R. �1614.107(b) upon concluding that appellant

failed to comply with the time restrictions contained with 29

C.F.R. �1614.105(a)(1). Allegations (a) and (b) were accepted for

investigation. This appeal followed.

ANALYSIS AND FINDINGS

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. USPS, 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 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.

Additionally, the Commission has held that the time requirements for

initiating EEO counseling could be waived as to certain allegations within

a complaint when the complainant alleged a continuing violation; that is,

a series of related discriminatory acts, one of which fell within the

time period for contacting an EEO Counselor. See McGivern v. U.S. Postal

Service, EEOC Request No. 05901150 (December 28, 1990). In determining

whether a claim for a continuing violation is stated, it is important

to consider whether an appellant had prior knowledge or suspicion of

discrimination and the effect of this knowledge. Jackson v. Department

of the Air Force, EEOC Request No. 05950780 (June 27, 1997).

Appellant initiated contact with an EEO counselor on September 18,

1998, fifty days after the occurrence of the alleged discriminatory

events at issue here. The Commission declines to apply the continuing

violation doctrine because appellant does not allege that he did not

timely suspect that the alleged events were discriminatory. Instead,

he argues that the applicable time limits should be tolled because he was

placed on medical restriction, and therefore, not permitted to work from

July 31, 1998 to September 1, 1998. He does not assert that he was not

aware of the time limits, nor does he contend that during his time off,

he was prevented, due to his medical condition, from contacting an EEO

counselor by telephone or in writing. In addition, as the agency points

out in its appeal brief, upon returning to work, he still had thirteen

days within which to contact an EEO counselor and, for whatever reason,

failed to do so. In light of the foregoing, the Commission holds that

the agency's decision to dismiss the complaint as violative of the time

requirements contained in 29 C.F.R. �1614.105(a)(1) was appropriate.

Accordingly, the decision of the agency was proper and, therefore,

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 (S0993)

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:

Oct. 5, 1999

____________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations