Earl G. Berger, Complainant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionMar 20, 2000
01a00192 (E.E.O.C. Mar. 20, 2000)

01a00192

03-20-2000

Earl G. Berger, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.


Earl G. Berger, )

Complainant, )

)

v. ) Appeal No. 01A00192

) Agency No. DOT-6-98-6046

Rodney E. Slater, )

Secretary, )

Department of Transportation, )

Agency. )

____________________________________)

DECISION

Based on a review of the record, we find that the agency properly

dismissed complainant's complaint, pursuant to 64 Fed. Reg. 37,644,

37,656 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �

1614.107(a)(2)), for failure to contact an Equal Employment Opportunity

(EEO) counselor within the 45-day time limit.<1> Complainant alleged that

he was subjected to discrimination on the basis of physical disability

(Grand Mal seizure caused by medication) when he was forced to retire

on or about June 28, 1996, because his aviation medical certificate was

revoked and the agency allegedly failed to either restructure his job

or reassign him to another position not requiring such a certificate.

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 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.

According to the EEO Counselor's Report in the instant case, complainant

initially contacted an EEO counselor on January 16, 1998, more than one

and one-half years following his retirement from the agency.

Complainant does not contend that he was unaware of the time limitation

for contacting an EEO Counselor. Instead, he argues that he did not

realize he could pursue the EEO complaint process until December 15,

1997, when he "learned that the [Federal Aviation Administration (FAA)]

does make accommodations for physical disabilities and could have done

so for me."<2> However, the Commission has held that the time limit for

contacting an EEO Counselor shall not be extended "simply on the grounds

that [complainant] did not know that disability in general or that [a

disability in particular] was covered under the Rehabilitation Act." Moore

v. Department of the Navy, EEOC Appeal No. 01952942 (March 28, 1996).

Complainant further asserts that he was misled by the Acting Human

Resources Manager (who at the time also served as the "Acting Handicap

Coordinator"), when she told him that a search had yielded no vacant

positions available at complainant's grade level or salary which did

not require a medical certificate. The Commission has held that agency

actions that mislead an individual concerning his EEO rights will toll the

limitations period. See Santos v. Department of the Navy, EEOC Request

No. 05960813 (June 12, 1997). However, individuals using the EEO

process must act with due diligence in the pursuit of their claims. See,

e.g., Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151 (1984)

(per curiam) ("one who fails to act diligently cannot invoke equitable

principles to excuse lack of diligence"). On the facts of this particular

case, complainant has not established that he was misled by any agency

official with respect to his EEO rights or the EEO process itself, and

therefore he has failed to present adequate justification for extending

the limitation period beyond forty-five days.

Accordingly, the agency's decision to dismiss appellant's complaint for

failure to initiate contact with an EEO Counselor in a timely fashion

was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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:

3/20/00

Date

Carlton

M.

Hadden,

Acting

Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

___________________________

Equal Employment Assistant Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.

2 Specifically, complainant contends that following his retirement, he

worked as a contract instructor at the FAA academy and observed that

two employees with other physical disabilities had been accommodated

in various ways, causing him to believe that the agency had positions

available which did not require aviation medical certificates.