Fred T. Forrest, Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionFeb 1, 2000
01992895 (E.E.O.C. Feb. 1, 2000)

01992895

02-01-2000

Fred T. Forrest, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.


Fred T. Forrest, )

Complainant, )

)

v. ) Appeal No. 01992895

) Agency No. 98-4207

Lawrence H. Summers, )

Secretary, )

Department of the Treasury, )

Agency. )

____________________________________)

DECISION

The Commission finds that the agency's decision dated February 12, 1999

dismissing complainant's complaint for untimely EEO Counselor contact is

proper pursuant to the regulation set forth at 64 Fed. Reg. 37,644, 37656

(to be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(2)).<1>

Complainant alleged that he was discriminated on the bases of race

and disability (leg amputee) when he was denied administrative leave

(including future leave and retroactive administrative leave in place

of used sick and annual leave) for prosthesis training commencing

from the time complainant became an employee with the agency in 1974.

The Commission finds that complainant should have reasonably suspected

discrimination upon receipt of a memorandum dated April 21, 1997

concerning administrative leave for employees who are visually impaired

(guide dog training). Complainant admits he was aware of the April 21,

1997 memorandum in May 1997. Complainant argues that the April 21,

1997 memorandum justifies granting administrative leave to complainant.

The Commission finds that complainant did not initially contact an EEO

Counselor with the intent of commencing the EEO process until February 23,

1998, which is beyond the 45 day time limit set forth in � 1614.105(a)(1).

Complainant may be arguing that he initially contacted an EEO Counselor on

September 2, 1997. Complainant did write a memorandum dated September 2,

1997 to the EEO Officer requesting the administrative leave at issue in

this complaint. Even if September 2, 1997 were the initial EEO contact

date, such contact is still more than 45 days after complainant should

have reasonably suspected discrimination in May 1997.

Alternatively, if we examine when complainant was actually informed that

his request for administrative leave was denied, we still find that

complainant failed to timely contact an EEO Counselor. By memorandum

dated September 29, 1997 the agency denied complainant's September 2,

1997 request for administrative leave. By memorandum dated November

1, 1997 complainant "appealed" the September 29, 1997 decision to the

District Director. Thus, we find that complainant should have reasonably

suspected that the rejection of his September 2, 1997 leave request was

discriminatory by, at the latest, November 1, 1997. Complainant's contact

of an EEO Counselor on February 23, 1998, was more than 45 days after

November 1, 1997, and is therefore untimely.

Therefore, no matter whether the complaint as viewed as claiming that

the April 21, 1997 memorandum was discriminatory or the September 29,

1997 denial of leave was discriminatory, we find that complainant failed

to timely contact an EEO Counselor.

The agency's decision dismissing the complaint 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:

February 1, 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 of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_____________________ _________________________ 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.