01a61864
07-21-2006
Edward L. Johnson, Complainant, v. Alphonso Jackson, Secretary, Department of Housing and Urban Development, Agency.
Edward L. Johnson,
Complainant,
v.
Alphonso Jackson,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 01A61864
Agency No. 06015
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 23, 2005, 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.
ISSUE PRESENTED
The issue herein is whether the agency's dismissal of complainant's
complaint on the grounds of untimely counselor contact was proper.
BACKGROUND
Complainant alleged in his formal complaint that he was subjected to
discrimination on the bases of race (African-American), sex (male),
and in reprisal for engaging in prior protected EEO activity under Title
VII when:
(1) He was denied performance evaluations for fiscal years 2002, 2003,
and 2004;
(2) He was denied performance awards in fiscal years 2002, 2003, and 2004,
while comparators received performance awards;
(3)
He was subjected to a hostile work environment and harassment from 2001
to 2004 as a result of an inappropriate relationship between his former
supervisor and an employee; and
(4) In March, 2004, he was interrogated by the Office of the Inspector
General as reprisal for his refusal to provide special treatment to an
employee favored by his supervisor;
Complainant, a GS-15 grade employee, initiated contact with an EEO
Counselor on August 26, 2005. In his complaint, complainant indicated
that he did not contact an EEO counselor prior to August 26, 2005, because
of a fear of reprisal. The record reflects that complainant was aware
of performance evaluations prepared for individuals under his supervision
during the month of October following each fiscal year from 2002 to 2004,
while he did not received any evaluations for those years. Complainant
maintained, however, that it was not until he obtained records showing
that other GS-15 grade employees had received performance evaluations
and awards in those fiscal years that he realized that he was being
discriminated against.
The agency dismissed complainant's complaint on the grounds of untimely
counselor contact, finding that complainant had failed to initiate contact
with an EEO counselor within forty-five (45) days of each incident,
and had failed to provide a sufficient justification for extending the
forty-five (45) day limit. 1
ANALYSIS AND FINDINGS
Claims (1) and (2)
EEOC Regulation 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.
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.
Claims (1) and (2) may be properly dismissed for untimely counselor
contact because complainant failed to contact an EEO Counselor within
forty-five (45) days of becoming reasonably suspicious of discrimination.
On appeal, complainant contends that because he contacted an EEO officer
within forty-five (45) days of receiving confirmation that other GS-15
grade employees received performance evaluations and awards, claims (1)
and (2) should be considered timely. However, the reasonable suspicion
standard requires that the forty-five (45) day limit begin as soon as
a complainant has a reasonable suspicion, not knowledge or proof, of
discrimination. The fact that complainant sought out records of other
GS-15 grade employees' performance evaluations and awards indicates that
he had a reasonable suspicion of discrimination at the time he sought
the records. These records were received by complainant in August
2005; however, complainant did not argue or establish that the records
were sought during the 45-day period that preceded his August 26, 2005
counselor contact. Therefore, because nothing in the record suggests
that complainant was not reasonably suspicious of discrimination prior
to receiving the records of his co-workers, we find that claims (1) and
(2) were properly dismissed for untimely EEO Counselor contact.2
Claims (3) and (4)
On appeal, complainant indicated that, "I believe that HUD erred in its
decision regarding the timeliness of certain aspects of my complaint.
I have chosen to counter HUD's assertions by responding to deficiencies in
its legal analysis . . . ." Complainant went on to outline his concerns
regarding claims (1) and (2). He did not address the dismissals of
claims (3) and (4), however. The Commission has the discretion to review
only those issues specifically raised in an appeal. Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614, 9-10 (November
9, 1999). As such, we will not address the dismissal of claims (3) and
(4) because it appears that complainant is not contesting the agency's
determination regarding these matters.
Accordingly, the agency's final decision is hereby affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____07-21-06______________
Date
1 The agency's decision did not list claim (4) among the allegations
raised in complainant's complaint. Because the agency found that "none
of" complainant's claims were timely, we will assume that the agency
intended to also dismiss claim (4), which occurred in March 2004.
2 The agency, in its final decision, correctly stated the Commission's
position that the fear of reprisal is not an adequate justification for
extending the time limitation period for contacting an EEO Counselor.
See Parker v. Department of Veterans Affairs, EEOC Request No. 05940436
(February 9, 1995).
??
??
??
??
2
01A61864
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
01A61864