01981513
03-19-1999
Harvey H. Ware, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Harvey H. Ware v. Department of the Air Force
01981513
March 19, 1999
Harvey H. Ware, )
Appellant, )
)
v. ) Appeal No. 01981513
) Agency No. 5Z1S97008
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
The Commission finds that the agency's November 12, 1997 and February 4,
1998 decisions dismissing a portion of appellant's complaint on the basis
of untimely EEO counselor contact, are proper pursuant to the provisions
of 29 C.F.R. �1614.107(b).
The record shows that appellant contacted the agency's EEO office on
April 9, 1997. At that time, appellant was allegedly advised regarding
the 45-day time limit for EEO counselor contact. The record further
shows that on April 29, 1997, appellant filed a Personal and Fraud,
Waste & Abuse Complaint with the agency's Office of Inspector General.
On July 28, 1997, appellant sought EEO counseling alleging that he had
been discriminated against on the bases of race (African American)
and reprisal for prior EEO activity when: (a) on June 23, 1997, he
was non-selected for the Contract Specialist, GS-1102-12 position;
(b) on April 21, 1997, he was non-selected for the Contract Specialist,
GS-1102-12 position; (c) on April 7, 1997, he was non-selected for the
Contract Specialist, GS-1102-12 position; (d) on February 24, 1997, he
was non-selected for the Contract Specialist, GS-1102-12 position; (e)
on December 12, 1996, he was non-selected for the Contract Specialist,
GS-1102-12 position;(f) on July 30, 1996, he was non-selected for
the Contract Specialist, GS-1102-12 position; (g) on June 4, 1996,
he was non-selected for the Contract Specialist, GS-1102-12 position;
(h) at an unspecified date in 1996, he was determined to be ineligible
for the GS-1102-11 Contract Specialist position as he needed only three
weeks or so to become eligible and management unfairly speeded up the
ranking process in order that his name would not be on the certification
of eligible employees; and, (i) from 1990 through 1995, management kept
him from advancement to a GS-11 position and as a result, he was not
eligible for a GS-12 position until 1996.
On November 12, 1997, the agency issued a final decision and dismissed
allegations (h) and (i) on the grounds of untimely EEO counselor contact.
On appeal, appellant contends that "even though [he] suspected something
to be awry, [he] did not have the proof at the time". On February
4, 1998, the agency issued a revised final decision and dismissed
allegations (b) - (g) on the basis of untimely EEO counselor contact after
finding that even though appellant acknowledged "feeling" discriminated
against since 1990, he did not seek EEO counseling until July 1997,
and only after filing a complaint with the agency's Inspector General.
The Commission applies a "reasonable suspicion" standard to the
triggering date for determining the timeliness of the contact with an
EEO counselor. Cochran v. United States Postal Service, EEOC Request
No. 05920399 (June 18, 1992). Under this standard, the time period
for contacting an EEO counselor is triggered when the complainant
should reasonably suspect discrimination, but before all the facts
that would support a charge of discrimination may have become apparent.
Id.; Paredes v. Nagle, 27 FEP Cases 1345 (D.D.C. 1982). Based on the
foregoing, we find that the agency's decision dismissing allegations
(b) through (i) is proper and it is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
March 19, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations