01A05690_r
05-02-2001
Jeffrey A. Claxton, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Intelligence Agency), Agency.
Jeffrey A. Claxton v. Department of Defense, Defense Intelligence Agency
01A05690
May 2, 2001
.
Jeffrey A. Claxton,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Intelligence Agency),
Agency.
Appeal No. 01A05690
Agency No. 00-MD-03
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated August 8, 2000 dismissing his complaint of unlawful
employment discrimination in violation of Title VII. In his formal
complaint, complainant alleged that he was subjected to discrimination on
the basis of religion when he was required to take a diversity training
course (MD-mandated training course, EO-100).
The agency dismissed the formal complaint, filed on June 23, 2000, finding
that complainant failed to contact an EEO Counselor within the forty-five
(45) day time limit pursuant to 29 C.F.R. � 1614.107(a)(2). The agency
found that complainant had a reasonable suspicion of discrimination on
April 27, 1998, when he was initially required to take the training
course, and that his initial EEO Counselor contact on May 1, 1998,
was therefore untimely.
On appeal, complainant argues that it was not until March 23, 2000,
when he received the CD-ROM training (as a religious accommodation in
lieu of attending the agency mandated training course), that he realized
he was subjected to discrimination based on his religion.
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 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 had 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, 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.
Here, we find that complainant has not submitted any persuasive evidence
showing that he only developed a reasonable suspicion of discrimination
on March 23, 2000. The record reflects that complainant's claim arises
from the mandated diversity training course (EO-100), that complainant
was required but refused to attend back in April 1998. The record
further reflects that in 1998, complainant began an aggressive campaign
to have the diversity training course abolished as a violation of his
religious freedom that included filing a complaint with the agency's
Inspector General's office and contacting the General Counsel's office.
In his complaint, complainant stated that he informed management in April
1998, that he had a personal religious conflict with the teachings of
the mandated EO-100 training course.
Accordingly, the agency's decision to dismiss the complaint for untimely
EEO Counselor contact was proper and 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
May 2, 2001
__________________
Date