01992007_r
10-22-1999
Eddy Emile, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Eddy Emile, )
Appellant, )
)
v. ) Appeal No. 01992007
) Agency No. LUIM98042
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
______________________________)
DECISION
On January 9, 1999, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on December 11,
1998, pertaining to his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The agency characterized appellant's complaint
as alleging that he was subjected to discrimination on the bases of race
(African-American) and color (Black) when:
On May 8, 1998, appellant received an �excellent� appraisal rating;
In mid 1997, appellant was denied a larger office; and
On October 2, 1997, appellant was not assigned the additional duty of
Deputy Director, User Requirements Branch (DDURB).
The agency accepted allegation (1) for investigation and
dismissed allegations (2) and (3) pursuant to EEOC Regulation 29
C.F.R. �1614.107(b), for failure to initiate contact with an EEO Counselor
in a timely manner. Specifically, the agency determined that because
appellant's June 9, 1998 initial EEO Counselor contact occurred more
than forty-five (45) days from the dates of the alleged discrimination
identified in allegations (2) and (3), it was untimely.
On appeal, appellant contends that he made numerous requests for larger
office space and that the agency erred by only focusing on the mid
1997 date. Also, appellant argues that he timely sought EEO counseling
concerning allegation (3) when it became evident to him that management
had no intention of relieving the current DDURB as had been promised
appellant in an October 1997 meeting.
The Commission notes that in the attachment to appellant's formal
complaint, appellant indicated that �management has been aware of [his]
need for a larger office for quite some time. [Appellant has] been
continuously requesting office space to meet [his] programmatic needs...�
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.
With regard to allegation (2), we find that the agency's decision
was in error. As clearly stated in appellant's formal complaint,
he alleged that management failed to provide him larger office space
on numerous occasions since 1997. Accordingly, the agency erred
by focusing merely on the first alleged denial of a larger office.
The Commission notes, however, that appellant failed to identify with
particularity the subsequent dates on which he was denied a larger office.
EEOC Regulation 29 C.F.R. �1614.106(c) provides that a complaint must
contain a statement that is sufficiently precise to describe generally
the action(s) or practice(s) that form the basis of the complaint.
As appellant failed to identify the dates on which he was denied office
space, we must remand the matter for a supplemental investigation.
In allegation (3), appellant alleged that he was discriminated against
when he was not provided the additional duty of acting as the DDURB.
On appeal, appellant argues that this issue should be considered timely
because he attempted to address the issue by going directly to management,
and when this avenue of redress was unsuccessful, appellant timely sought
EEO counseling. We note, however that the use of other procedures to
address EEO matters does not toll the time limit for contacting an EEO
Counselor. Schermerhorn v. USPS, EEOC Request No. 05940729 (February
10, 1995)(negotiated grievance procedure). As appellant's June 9,
1998 initial EEO Counselor contact occurred more than forty-five (45)
days from the date of the alleged discrimination in allegation (3),
we find that it was untimely and that the agency's dismissal was proper.
Accordingly, the agency's final decision dismissing allegation (3) is
AFFIRMED for the reasons set forth herein. The agency's decision to
dismiss allegation (2) is hereby VACATED. Allegation (2) is REMANDED
to the agency for further processing in accordance with this decision
and the Order below.
ORDER
The agency is ORDERED to take the following actions:
Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall undertake a supplemental investigation to
determine the dates on which appellant was denied larger office space.
The agency shall send appellant a letter requesting that he provide
this information within fifteen (15) calendar days of its receipt,
or face dismissal of that allegation pursuant to 29 C.F.R. �1614.107(g).
Within forty-five (45) calendar days of the date this decision becomes
final, the agency shall issue a notice of processing and/or a new FAD
regarding allegation (2).
A copy of the agency's notice of processing and/or new FAD regarding
allegation (2) must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action.
The report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. ��1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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 (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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. 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 (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:
October 22, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations