George Colebrook, Jr., Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionJul 5, 2000
01a03013 (E.E.O.C. Jul. 5, 2000)

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.