0120083267
10-22-2008
Dudley K. Williams, Complainant, v. Condoleezza Rice, Secretary, Department of State, Agency.
Dudley K. Williams,
Complainant,
v.
Condoleezza Rice,
Secretary,
Department of State,
Agency.
Appeal No. 0120083267
Agency No. DOS-F-070-08
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated June 26, 2008, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.
On April 14, 2008, complainant initiated EEO Counselor contact.
Informal efforts to resolve his concerns were unsuccessful.
On May 10, 2008, complainant filed the instant formal complaint. Therein,
complainant alleged that he was subjected to a hostile work environment
on the bases of race (African-American) and disability (physical) when in
November 2007 his former Communications Assistant position was advertised
three times prior to him being interviewed for the subject position and
he was not selected.1
Complainant further alleged that he was subjected to "constant harassment,
verbal abuse from [former Supervisor (S1)] it's been noted by my
supervisor that it's personal. I worked in a hostile environment for
over a year and always in the back of my mind the fear of losing my job.
I have lost my job and speaking up now."2
In its June 26, 2008 final decision, the agency dismissed the instant
formal complaint pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds of
untimely EEO Counselor contact. The agency determined that complainant's
initial EEO contact was beyond the 45-day limitation period.
On appeal, complainant contends that the agency improperly dismissed his
formal complaint for untimely EEO Counselor contact. In support of his
assertions, complainant submits a copy of his letter dated July 18, 2008
to the Chief of the Intake and Resolution Section. Therein, complainant
states that in the final agency decision presently on appeal, "It states
that, the EEO Counselor was not informed of the hostile work environment.
This statement is not correct." Complainant contends that he informed two
EEO Counselors on separate occasions that he was subjected to harassment
and a hostile work environment. Complainant acknowledged telling the EEO
Counselor that he did not want to file a complaint "because I had doubts
and this is a serious matter which I did not want to take lightly."
Furthermore, complainant states "However, after coming to terms and
facing the reality that [S1's] action and strong intentions of removing
me from my place of work [sic] was a direct discrimination against me.
I stayed in the hostile work environment like many people do over concern
of losing my job."
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 contains a copy of the e-mail correspondence dated April 25,
2008 between complainant and the EEO Counselor. The e-mail correspondence
indicates that complainant acknowledged he was aware of the 45-day
limitation period.
We note that none of the alleged discriminatory incidents cited by
complainant occurred within the 45-day period preceding complainant's
EEO contact. We further note in the EEO Counselor's report, the EEO
Counselor stated that the last alleged discriminatory event occurred in
the October/November 2007, when complainant's previous job (Communication
Assistant position) was advertised but complainant was not initially
interviewed nor selected for the subject position. The agency properly
dismissed the complaint on the grounds of untimely EEO Counselor contact.
Complainant did not initiate contact with an EEO Counselor until April
14, 2008 which was beyond the forty-five (45) day limitation period.
Complainant had, or should have had, a reasonable suspicion of unlawful
employment discrimination at the time of the alleged discriminatory event,
and he should have contacted the EEO office within forty-five days.
Complainant has failed to provide sufficient justification for extending
or tolling the time limitation.
Accordingly, the agency's final decision dismissing the instant complaint
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
October 22, 2008
Date
1 The record reflects that the subject position of Communications
Assistant is re-advertised every two years because it is a sensitive
position requiring a security clearance.
2 The record reflects that at the time of the filing of the instant
complaint, complainant was employed as a Computer Operator with the
agency.
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0120083267
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036