01a02147
05-24-2000
Kelvin Y. Tse, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Kelvin Y. Tse v. Department of the Navy
01A02147
May 24, 2000
Kelvin Y. Tse, )
Complainant, )
)
v. ) Appeal No. 01A02147
Richard J. Danzig, ) Agency No. 00-60701-002
Secretary, )
Department of the Navy, )
Agency. )
____________________________________)
DECISION
On January 7, 2000, complainant filed a timely appeal with this Commission
from an agency decision received by him on December 20, 1999, 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.<1> In his complaint, complainant alleged that he was subjected
to discrimination on the bases of race (Asian) when:
Complainant was not selected for the position of Supervisory Environmental
Engineer, GS-819-13, in 1995 - 1996.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and
hereinafter referred to as 29 C.F.R. �1614.107(a)(2)), for untimely EEO
Counselor contact. Specifically, the agency claimed that complainant's
September 27, 1999 counselor contact was untimely, as it occurred several
years after complainant was non-selected for the Supervisory Environmental
Engineer position.
On appeal, complainant claims that he has discovered new information
that was not available at the time of the non-selection and therefore
argues that the time limits for contacting an EEO Counselor should
be waived. Complainant states that subsequent to his non-selection
he discovered that the two white selectees who were chosen to fill
the GS-13 position did not meet the minimum requirements of the job.
Complainant states that on September 23, 1999, he discovered that the
second selectee (S2) received a RIF letter which caused complainant to
investigate S2's background and led to complainant's discovery that S2
failed to meet the required job qualifications for the GS-13 position.
Therefore, complainant argues that his September 27, 1999 EEO Counselor
contact was within the applicable forty-five (45) day time limit.
Upon review of the record, we find that the agency properly dismissed
complainant's complaint on the grounds of untimely EEO Counselor contact.
In the formal complaint, complainant states that he was surprised to
learn in January 1996, that selectee 1 (S1) was offered the GS-13 job
because S1 did not have a Professional Engineer (PE) license or the same
experience as compared to complainant. In addition, complainant states
that in 1998, when the position of Head of the Environmental Department
opened up, he heard from one of his associates that the selecting official
was looking for an "American" and that the position was for S2 and that
it was a waste of time for complainant to apply.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with a counselor within forty-five (45)
days of the date of the matter alleged to be discriminatory or, in the
case of personnel action, within forty-five (45) days of the effective
date of the action. EEOC Regulation 29 C.F.R. �1614.105(a)(2) provides
that the agency or the Commission shall extend the forty-five (45) day
lime limit in paragraph (a)(1) of this section when the individual shows
that he or she was not notified of the time limit and was not otherwise
aware of them, that he or she did not know and reasonable should not have
known that the discriminatory matter or personnel action occurred, that
despite due diligence he or she was prevented by circumstances beyond his
or her control from contacting the counselor within the time limits, or
for other reasons considered sufficient by the agency or the Commission.
The Commission has adopted a "reasonable suspicion" standard, as opposed
to a "supportive facts" standard, to determine when the limitation period
is triggered. See Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988).
In the present case, we find that the non-selections were separate
and discrete incidents, which should have triggered any suspicion
of discrimination at the time they occurred. In fact, based on
complainant's own statement he was surprised to learn in January 1996,
that S1 was selected for the GS-13 position without a PE license or
supervisory experience. Therefore, complainant's September 27, 1999
counselor contact, several years after the non-selections, was untimely.
Accordingly, the agency's decision to dismiss complainant's complaint
was improper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
May 24, 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
1On 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.