01994608
07-27-2000
Gregory Turner, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Gregory Turner, )
Complainant, )
)
v. ) Appeal No. 01994608
) Agency No. DOT-6-99-6035
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
______________________________)
DECISION
The Commission finds that the agency's April 15, 1999 decision dismissing
the complaint on the grounds of untimely EEO Counselor contact is proper
pursuant to the provisions of 64 Fed. Reg. 37,644, 37,656 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. �1614.107(a)(2)).<1>
The record shows that complainant sought EEO counseling on January 8,
1999, and claimed that he was discriminated against on the basis of
reprisal. Specifically, complainant claimed that after he was selected
for a 120-day temporary promotion for the position of Air Traffic
Controller Specialist, FG-2152-14, at an agency facility in Los Angeles,
effective January 31, 1999, he did not receive per diem payment for the
temporary promotion. Complainant subsequently filed a formal complaint
on the same matter for which he underwent EEO counseling.
The agency issued a final decision dismissing the complaint for untimely
EEO Counselor contact after finding that complainant was advised by
a letter dated November 6, 1998, that he would not receive a per diem
allowance, and that therefore he should have sought EEO counseling no
later than December 22, 1998.
The record reflects that complainant claimed that on October 15, 1998,
he was advised that per diem was not authorized. The record further
reflects that in November 1998, complainant was once again advised that
he would not get a per diem allowance. Moreover, the record reflects
that complainant claimed that he �assumed he would receive per diem�
because another employee was receiving �flat rate per diem�.
Volume 64 Fed. Reg. 37,644, 37656 (1999) (to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. � 1614.107(a)(2)) 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.
A review of the record shows that by letter dated November 6, 1998,
complainant was advised that he would not be entitled to a per diem
allowance. The record reflects that complaint was previously advised
of this matter in October 15, 1998. Nevertheless, Complainant contends
that he �assumed he would receive per diem�.
The Commission determines that complainant had, of should have had, a
reasonable suspicion of unlawful employment discrimination when apprised
as early as October 1998, that he would not be paid a per diem allowance.
Complainant did not pursue the EEO complaint process within forty-five
days of that date but instead contacted an EEO Counselor on January
8, 1999. Complainant has provided no justification for the delay in
contacting an EEO Counselor. Based on the foregoing, we find that the
dismissal of the complaint on the grounds of untimely EEO counselor
contact was proper and is hereby AFFIRMED.
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 27, 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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
____________ __________________________________
DATE EQUAL EMPLOYMENT ASSISTANT
1 On 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.