John Leins, Complainant,v.William S. Cohen, Secretary, Department of Defense, (Army & Air Force Exchange Service), Agency.

Equal Employment Opportunity CommissionFeb 17, 2000
01985721 (E.E.O.C. Feb. 17, 2000)

01985721

02-17-2000

John Leins, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Army & Air Force Exchange Service), Agency.


John Leins, )

Complainant, )

)

v. ) Appeal No. 01985721

William S. Cohen, ) Agency No. 98011

Secretary, )

Department of Defense, )

(Army & Air Force Exchange Service), )

Agency. )

____________________________________)

DECISION

On July 1, 1998, complainant filed a timely appeal with this Commission

from a final agency decision (FAD) received by him on June 3, 1998,

pertaining to his complaint of unlawful employment discrimination in

violation of Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. � 2000e et seq. and the Equal Pay Act of 1963 ("EPA"), as amended,

29 U.S.C. �206(d) et seq. <1> In his complaint, complainant alleged

that he was subjected to discrimination on the basis of sex (male) when:

In April 1993, approximately one and a half years after being transferred

to an HPP 3, Store Associate position, complainant learned that other

female employees in the same position were being paid as HPP 5, Store

Associates; and

Complainant requested an upgrade to his position he was told that he

would be required to complete a training package which other female

employees were not required to complete in order to advance to the HPP

5 position.

The agency dismissed complainant's complaint on the grounds of untimely

EEO Counselor contact and for failure to cooperate. Specifically,

the agency claimed that since complainant discovered the disparity in

grades/pay in 1993, his September 10, 1997 EEO Counselor contact was

untimely. In addition, the agency claimed that by letter dated December

9, 1997, signed for on December 12, 1997, complainant was asked to explain

why he did not contact an EEO Counselor within forty-five days of the time

he discovered the disparity in grades/pay and to provide the date that

he was told that he would be required to complete the training package.

The agency further stated that it issued a Notice of Intent to Dismiss

Discrimination Complaint dated January 9, 1998, signed for on January

14, 1998, which informed complainant of the agency's intent to dismiss

his complaint if complainant did not respond to the request within

fifteen calendar days from receipt of the letter. The agency dismissed

complainant's complaint when he failed to respond to the agency's letter.

In his formal complaint, complainant stated that after discovering the

differences in grades/pay in 1993, he questioned his supervisor about

the disparity. Complainant also stated that he spoke to his union

representative, the Human Resources Manager and his other supervisor about

the difference in pay between complainant and the women in his position.

Complainant stated that he was then told that he needed to complete

training before receiving a possible upgrade. According to complainant,

he completed the training and when he saw no further attempts by the

agency to resolve the situation, he sought EEO Counseling.

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 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 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 present case, the record reveals that complainant learned of the

disparity in grades/pay in April 1993, approximately a year and a half

after his transfer. The record also reveals that complainant spoke to

two supervisors, the Manager of Human Resources, and his union regarding

the disparity in grades/pay between himself and other female employees

prior to contacting an EEO Counselor. Complainant did not contact an

EEO Counselor until September 10, 1997, nearly three and a half years

after learning of the alleged discrimination. Therefore, the Commission

find that complainant failed to timely contact an EEO Counselor.

Accordingly, the agency properly dismissed complainant's complaint and

the agency decision is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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:

February 17, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant1On November 9, 1999, revised

regulations governing the EEOC's federal sector complaint process

went into effect. These regulations apply to all federal sector

EEO complaints pending at any stage in the administrative process.

Consequently, the Commission will apply the revised regulations found

at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.