James R. Wolfe, Appellant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionFeb 17, 1999
01982079_r (E.E.O.C. Feb. 17, 1999)

01982079_r

02-17-1999

James R. Wolfe, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.


James R. Wolfe, )

Appellant, )

)

v. ) Appeal No. 01982079

) Agency No. 5-98-5020

Rodney E. Slater, )

Secretary, )

Department of Transportation, )

Agency. )

______________________________)

DECISION

On January 13, 1998, appellant filed a timely appeal with this Commission

from a final agency decision (FAD) dated December 17, 1997, pertaining

to his complaint of unlawful employment discrimination in violation

of �501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791

et seq. In his complaint, appellant alleged that he was subjected to

discrimination on the basis of physical disability (imperfect vision)

when the agency failed to provide him with a reasonable accommodation and

dismissed him from his position as an air traffic controller specialist

on May 26, 1994.

The agency dismissed appellant's complaint pursuant to EEOC Regulation

29 U.S.C. �1614.107(b), for failure to initiate contact with an EEO

Counselor in a timely manner. Specifically, the agency determined that

appellant's November 4, 1997 initial EEO Counselor contact occurred more

than forty-five days from the date of the alleged discrimination and was,

therefore, untimely.

The record discloses that on January 31, 1995, appellant filed a complaint

directly with a local Commission office. The record further shows that

on July 26, 1995, the Commission responded to appellant's complaint by

instructing him to initiate contact with an EEO Counselor. Appellant did

not do so until November 4, 1997.

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 Ball v. USPS,

EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period

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 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.

In the instant case the record discloses that appellant suspected that he

was subjected to discrimination on January 31, 1995, when he submitted

a complaint directly with the Commission. Although on July 26, 1995,

the Commission informed appellant of the proper procedure for filing a

formal complaint, he chose not to initiate contact with an EEO Counselor

until November 4, 1997, beyond the forty-five day limitation period.

As appellant provided no justification sufficient to extend the time

period, we find that the agency's decision to dismiss his complaint for

untimely EEO Counselor contact was proper. Accordingly, the agency's

decision is AFFIRMED for the reasons set forth herein.

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. �1614.604(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 to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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:

Feb. 17, 1999

____________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations