01991480
12-19-2000
Herschel Williams, Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.
Herschel Williams v. Department of the Air Force
01991480
December 19, 2000
.
Herschel Williams,
Complainant,
v.
F. Whitten Peters,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01991480
Agency No. EPIS98046
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated November 22, 1998, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. In his complaint, complainant
alleged that he was subjected to discrimination on the bases of race
and disability when he was involuntarily separated on April 17, 1997,
from his employment at Cheyenne Mountain Air Station and he was not
shortly thereafter re-hired as other similarly situated employees.
The agency's decision dismissed complainant's claim for untimely EEO
Counselor contact. Specifically, the agency found that complainant's
August 6, 1998 EEO Counselor contact was more than forty-five days beyond
the April 17, 1997 date he claimed the agency's adverse action occurred,
and was therefore untimely.
The record indicates that in complainant's EEO Counselor's report, the
Counselor defined complainant's issue as concerning discrimination when
�on some unspecified date� complainant learned that other employees also
involuntarily separated on April 17, 1997, were rehired and he was not.
The Counselor's report additionally states complainant's assertion that
the employees were rehired �between 15 July to 15 August 97." We note
that, despite two requests from the Chief EEO Counselor to complainant
for the information, no evidence exists in the record to indicate the date
complainant learned that other similarly situated employees were rehired.
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 days of the date of
the matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five 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 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 Regulation 29 C.F.R. � 1614.105(a)(2) provides that the agency or
the Commission shall extend the time limits when the individual shows
that he was not notified of the time limits and was not otherwise aware
of them, that he did not know and reasonably should not have known that
the discriminatory matter or personnel action occurred, that despite
due diligence he was prevented by circumstances beyond his control from
contacting the Counselor within the time limits, or for other reasons
considered sufficient by the agency or the Commission.
Upon review of the record, we find that the agency has properly dismissed
complainant's complaint. Although the agency's decision incorrectly
used the April 17, 1997 date complainant was separated from employment as
the date the forty-five day limitation period for timely contact should
be triggered, the agency correctly determined that complainant's EEO
Counselor contact was untimely. The record shows complainant's assertion
that the claimed discriminatory action, i.e., rehiring other similarly
situated separated employees and not complainant, occurred between July 15
and August 15, 1997. Because complainant has not provided any evidence
to show that he did not reasonably suspect discrimination until after
August 15, 1997, that date should be used to trigger the time limit for
timely EEO Counselor contact. Therefore, as complainant's August 6,
1998 initial EEO counselor contact occurred more than forty-five days
after the August 15, 1997 date of the alleged discriminatory action,
it was untimely.
Accordingly, the agency's decision dismissing complainant's complaint
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 19, 2000
__________________
Date