Eddie A. Curtis, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 15, 2000
01993074 (E.E.O.C. Mar. 15, 2000)

01993074

03-15-2000

Eddie A. Curtis, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Eddie A. Curtis, )

Complainant, )

)

v. )

) Appeal No. 01993074

Togo D. West, Jr., ) Agency No. 98-3248

Secretary, )

Department of Veterans Affairs, )

Agency. )

____________________________________)

DECISION

On March 4, 1999, complainant filed a timely appeal with this Commission

from a final agency decision (FAD) dismissing his complaint for untimely

counselor contact.<1> The appeal is accepted by the Commission in

accordance with 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at

29 C.F.R. � 1614.405).

On August 18, 1998, complainant contacted the EEO office alleging that he

was discriminated against on the bases of race (Black), color (black),

sex (male), national origin (African-American), age (DOB: 9/1/51), and

reprisal (previous termination<2>) when on or about December 19, 1997:

1) he was notified that he was not hired for the position of Computer

Specialist, GS-334-11T12/12, Vacancy Announcement 98-S-9;

2) he was notified that he was not hired for the position of Computer

Specialist, GS-334-7T9/9, Vacancy Announcement Number 98-S-14; and

3) he was notified that he was not hired for the position of Information

Security Specialist, GS-080-9T11/11, Vacancy Announcement Number 98-S-18.

Complainant filed a formal complaint on October 15, 1998. The agency

issued a FAD dismissing complainant's complaint for untimely counselor

contact. The FAD indicated that on December 19, 1997, the agency's

Cincinnati office notified complainant that he was not selected for

the above positions. On December 30, 1997, complainant wrote the

agency for an explanation. On January 8, 1998, the agency informed

complainant that it was �unable to access [his] qualifications due to the

incomplete information submitted on [his] application.�<3> The letter

further identified other problem areas and explained why complainant's

application was considered incomplete. A brochure entitled �Applying

for a Federal Job� was also provided to complainant.

On appeal, complainant stated that he did not contact a counselor earlier

because he �was not aware of this being a case of discrimination, nor was

[he] aware that the January correspondence [he] received . . . was a

final decision regarding [his] applications for employment.� Furthermore,

he maintained that �I felt I was more than qualified for the positions

and I was awaiting answers to questions I raised in my correspondence to

them.� In an October 9, 1998 letter, complainant wrote that �the alleged

missing information was, in fact, contained in the application packet.�

Finally, in a March 3, 1999 letter, complainant, for the first time,

argued that �[a]t no time during the administrative correspondence did

[the agency] notify [him] of a time limit.�

64 Fed. Reg. 37,644, 37,656 (1999) (to be codified as 29 C.F.R. �

1614.107(a)(2)) provides, in pertinent part, that the agency shall dismiss

a complaint or a portion of a complaint that fails to comply with the

applicable time limits contained in � 1614.105. 64 Fed. Reg. 37,644,

37,656 (1999) (to be codified as 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. Finally, our 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.

29 C.F.R. � 1614.105(a)(2).

We find that complainant sought EEO counseling in an untimely manner.

After receiving the agency's letter of January 16, 1998, complainant was

provided with the agency's reasons for not selecting him. A review of the

letter does not support complainant's contention that he did not realize

that the agency had made a final decision regarding his nonselection.

There is also no evidence that, prior to his seeking EEO counseling,

the parties ever communicated again about his nonselections. Thus,

we find no persuasive evidence that complainant only suspected that he

was being discriminated against sometime during the 45-day period that

preceded his August 18, 1998 counselor contact. We note in this regard

complainant's claims that, contrary to the agency's assertions in its

January 1998 letter, his application packet already contained all of

the information that the agency claimed was missing; and that he felt

he was more than qualified for the positions.

Based on these facts, complainant should reasonably have suspected

discrimination.

Furthermore, we are not persuaded by complainant's contention that he was

not aware of the time limitation period for contacting EEO counselors.

Complainant's employment application indicates that he was employed

by the Federal government from March 1988 until January 1997, when he

was terminated. Complainant also indicated that he was at the GS-12

grade level at the time of his termination. Therefore, we find that it

is reasonable to conclude that complaint was aware of the EEO process

and its procedures.

Accordingly, the agency's decision to dismiss complainant's complaint

for untimely counselor contact 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:

March 15, 2000

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:

_____________________

_________________________________

Date

Equal Employment Assistant

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.

2Complainant was terminated from Federal employment on January 21,

1997.

3For example, complainant did not indicate why he was terminated.

He merely stated that he would explain during the interview.