01a03013
07-05-2000
George Colebrook, Jr., Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
George Colebrook, Jr. v. Department of the Treasury
01A03013
July 5, 2000
George Colebrook, Jr., )
Complainant, )
)
v. ) Appeal No. 01A03013
) Agency No. 00-4045
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
______________________________________)
DECISION
INTRODUCTION
Complainant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final agency decision concerning his equal
employment opportunity (EEO) complaint, which alleged discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The appeal is accepted by the Commission in
accordance with the provisions of 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. �1614.405).<1>
ISSUE PRESENTED
The issue presented is whether the agency properly dismissed the
above-referenced complaint for failure to state a claim and untimely
EEO counseling.
BACKGROUND
In a complaint filed November 12, 1999,<2> complainant, a Supervisory
Revenue Officer, GS-13, with the agency's Internal Revenue Service,
alleged that the agency discriminated against him on the basis of race
(Black) in that he was subject to actions taken against him by his
superior and his subordinates which ultimately caused him to request
to relinquish his position as a Supervisory Internal Revenue Officer
(also referred to as a Group Manager). On February 8, 2000, the agency
issued a FAD dismissing the complaint. It is from this decision that
complainant now appeals.
ANALYSIS AND FINDINGS
The Commission's regulations require that complaints of discrimination
be brought to the attention of an EEO counselor within 45 days of the
date of the matter alleged to be discriminatory or, in the case of a
personnel action, within 45 days of the effective date of the action.
29 C.F.R. � 1614.105(a)(1). The Commission has adopted a �reasonable
suspicion� standard, as opposed to a �supportive facts� standard,
to determine when the 45-day limitation period is triggered. See Ball
v. U.S. Postal Service, EEOC Request No. 05880247 (July 6, 1988). Thus,
the limitations period is not triggered until a complainant reasonably
suspects discrimination, but before all of the facts that support a
charge of discrimination have become apparent. A complainant satisfies
the criterion of counselor contact by contacting an agency official
logically connected with the EEO process, even if that official is not
an EEO counselor, and by exhibiting an intent to begin the EEO process.
See Floyd v. National Guard Bureau, EEOC Request No. 05890086 (June 22,
1989); Dumaquindin v. Dept. of the Navy, EEOC Appeal No. 01954218 (April
1, 1996).
In this case, complainant alleged that a series of actions taken by
his superiors and subordinates led him to request to relinquish his
supervisory position. The record reflects, and complainant does not
deny, that he suspected that these actions were motivated by unlawful
discrimination well before the 45-day period preceding his initiation
of the EEO process in December 1994. These allegations therefore were
not timely raised. Further, the one timely allegation � that the
aforementioned actions of his superiors and subordinates led him to
request to relinquish his supervisory position � fails to state a claim,
in that complainant did not, in fact, ever relinquish his supervisory
position, nor was he ever requested to do so.<3> See Riden v. Dept. of
the Treasury, EEOC Request No. 05970314 (October 2, 1998).
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
July 5, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
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.
2This is the second appeal in this case. In its previous decision,
the Commission remanded the allegations which comprise the complaint at
bar for EEO Counseling. The allegations originally were set forth in a
document dated December 27, 1994. George Colebrook, Jr., v. Department
of the Treasury, EEOC Appeal No. 01983169 (May 24, 1999).
3Indeed, the record reflects that complainant's superiors prevailed upon
him to remain in his supervisory position.