01a00562
02-28-2000
George M. Albert, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
George M. Albert, )
Complainant, )
)
v. ) Appeal No. 01A00562
) Agency No. 09909J0200
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
____________________________________)
DECISION
On October 12, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) received by him on October
5, 1999, 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 Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1> The Commission
accepts the current appeal in accordance with EEOC Order No. 960.001.
ISSUE PRESENTED
The issue presented herein is whether the agency properly dismissed the
current complaint for untimely EEO Counselor contact.
BACKGROUND
For the relevant period in question, complainant was employed by the
Department of the Army as a medical clerk, GS-4. Complainant states, that
on April 30, 1999, he became aware of a letter that the safety manager
wrote contesting his current Workers' Compensation Claim. However,
according to complainant, he did not receive a copy of this letter until
May 7, 1999. In response to this letter, the Workers' Compensation
Programs requested additional information with regards to complainant's
current claim.
Believing that he was the victim of discrimination, complainant, on July
15, 1999, initiated contact with an EEO Counselor. During the counseling
period, complainant stated that the safety manager submitted a letter to
the Workers Compensation Programs contesting his on the job injury claim.
Counseling failed, and on August 25, 1999, complainant filed formal
complaint claiming that he was the victim of unlawful employment
discrimination on the bases of age (forty and over) and disability
(physical). The complaint was comprised of the matters for which
complainant underwent EEO counseling, discussed above.
On September 28, 1999, the agency issued a final decision dismissing
the present complaint for failure to initiate timely contact with an
EEO Counselor. Specifically, the agency found that complainant became
aware of the alleged discriminatory act on April 30, 1999 and that his
initial EEO Counselor contact on July 15, 1999, was more than forty-five
days after the alleged discriminatory act occurred.
ANALYSIS AND FINDINGS
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 she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
In the present case, complainant admits that on April 30, 1999, he was
verbally informed of the letter the safety manager submitted and that on
May 7, 1999, he received a copy of this letter. The Commission finds that
on May 7, 1999, complainant should have had a �reasonable suspicion� that
he may be the victim of discrimination. Therefore, in using the date of
May 7, 1999 to commence the forty-five day limitations period, it is clear
that complainant initiated contact well beyond the forty-five day period.
Furthermore, complainant has submitted no evidence to warrant an extension
or waiver of the limitations period. Therefore, the instant complaint was
properly dismissed for failure to initiate contact with an EEO Counselor
within forty-five days of the alleged discriminatory event.
CONCLUSION
For the reason set forth herein, the Commission hereby AFFIRMS the
decision of the agency dismissing the present case for failure to initiate
timely contact with an EEO Counselor.
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 28, 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 Equal Employment Assistant1On 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.