Gregory Turner, Complainant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionJul 27, 2000
01994608 (E.E.O.C. Jul. 27, 2000)

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.