John E. Coleman, III, Appellant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 5, 1999
01991659_r (E.E.O.C. Nov. 5, 1999)

01991659_r

11-05-1999

John E. Coleman, III, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


John E. Coleman, III, )

Appellant, )

)

)

v. ) Appeal No. 01991659

) Agency No. 98-2189

)

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

___________________________________)

DECISION

On December 18, 1998, appellant filed a timely appeal of a November 20,

1998 final agency decision, which was received by him on November 27,

1998, dismissing three allegations in his complaint, pursuant to 29

C.F.R. �1614.107(b), due to untimely EEO Counselor contact.

In its final decision, the agency identified the allegations of

appellant's September 11, 1998 complaint as whether appellant was

discriminated against when: (1) on February 17, 1997, his coworker did

not provide him with a rigid back chair; (2) his medical restrictions

dated April 29, 1997, wherein his physician stated he could only work 32

hours per week, were not accommodated; (3) he submitted a CA-1 for an

on-the-job injury that he sustained on February 17, 1997, however, the

facility personnel office did not forward it to the Department of Labor

until April 28, 1998; and (4) on August 11, 1998, he was not allowed

to return to work. The agency accepted allegation (4) and dismissed

allegations (1), (2), and (3) due to untimely EEO Counselor contact.

The agency stated that appellant's EEO Counselor contact on August 5,

1998, with regard to the subject allegations, was beyond the 45-day time

limit set by the regulations.

EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of

discrimination be brought to the attention of the EEO Counselor within

45 days of the alleged discriminatory event, or the effective date of

an alleged discriminatory personnel action.

The Commission has adopted a �reasonable suspicion� standard (as opposed

to a �supportive facts� standard) to determine when the limitation period

is triggered under the EEOC Regulations. See 29 C.F.R. �1614.105(a)(2);

Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6,

1988). Thus, the limitations period is not triggered until a complainant

should reasonably suspect discrimination, but before all the facts that

would support a charge of discrimination have become apparent.

The record indicates that the incidents raised in allegations (1)

through (3) occurred on or before April 28, 1998. On appeal, appellant

indicates that in November 1997, his attorney advised him that there

was �no possibility of EEO activity,� and in March 1998, he received a

correspondence from his Senator in response to his concerns about his

employment status. The record contains the Senator's letter, wherein,

appellant was informed of the agency's grievance and EEO complaint

procedures regarding his employment concerns. There is no evidence in

the record that appellant was not aware of the EEO complaint processing,

including the requisite time limit to contact an EEO Counselor.

Appellant did not contact an EEO Counselor with regard to the subject

allegations until August 5, 1998, which was beyond the 45-day time limit

set by the regulations. We find that appellant fails to present adequate

justification to warrant an extension of the applicable time limit

for contacting an EEO Counselor pursuant to 29 C.F.R. �1614.105(a)(2),

with regard to allegations (1) through (3).

Accordingly, the agency's final decision 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. �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. 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:

November 5, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations