01990982_r
09-14-1999
Kent C. Chen, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Kent C. Chen, )
Appellant, )
)
v. ) Appeal No. 01990982
) Agency No. DON-98-60530-010
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
In a formal complaint, dated June 18, 1998, appellant alleged that he was
subjected to unlawful employment discrimination in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq. on
the bases of race (Asian) and in reprisal for prior EEO contact when:
On April 20, 1998, a coworker refused to install the updated 1998 Pulsar
Software on appellant's computer without permission from appellant's
Division Head; appellant's Division Head agreed to allow appellant to
install the software under the condition that someone watch appellant
install it;
On April 24, 1998, a coworker intentionally issued appellant sketches
that were rotated 180 degrees and upside-down for the purpose of making
appellant's job more difficult, and management tolerated the coworker's
behavior;
The Department Head transferred a coworker, but disapproved appellant's
requests for transfer in 1991, 1992, and 1993; and
The Department Head identified appellant's position for abolishment
in a Reduction-In-Force (RIF) effective July 31, 1996, instead of
transferring appellant into another branch.
On September 15, 1998, the agency issued a final agency decision (FAD)
accepting allegations (1) and (2), but dismissing allegations (3) and
(4) pursuant to EEOC Regulation 29 C.F.R. �1614.107(b), for untimely
counselor contact. Specifically, the agency noted that appellant
initially contacted a counselor on April 24, 1998, more than forty-five
days after allegations (3) and (4) occurred.
By electronic message dated September 24, 1998, appellant disagreed with
the agency's dismissal of allegations (3) and (4) arguing that he had
no suspicion of discrimination until April 20, 1998, when he learned
that non-Asians were having their transfer requests granted.
By letter dated October 28, 1998, the agency refused to accept allegations
(3) or (4). The agency enclosed appeal rights to the Commission, and
explained that appellant had a reasonable suspicion of discrimination by
October 15, 1997, when he mentioned his failure to receive transfers to
support other pending EEO complaints, Agency Numbers DON-95-60530-013
and DON-97-60530-004. On November 15, 1998, appellant filed a timely
appeal with this Commission from the agency's October 28, 1998 decision.
On appeal, appellant argues that although he mentioned the agency's
denial of his transfer requests in other complaints, he did not know the
reason his transfers were denied at that time. Appellant also alleges
that allegation (4) was the subject of a prior, improperly processed
EEO complaint.
In response, the agency notes that although appellant claims he had
no comparatives regarding the transfer of co-workers until April 1998,
appellant mentions the transfers of several co-workers, and questions
why he was not transferred, in a letter to an EEOC Administrative Judge
dated October 17, 1998. The agency also notes that if, as appellant
contends on appeal, allegation (4) was the subject of a prior complaint,
it should be dismissed pursuant to EEOC Regulation 29 C.F.R. �1614.107(a),
for stating the same claim pending or decided by the agency or Commission.
The record contains a copy of the Counselor's Report, dated June 30,
1998, which states that appellant initially contacted a counselor on
April 24, 1998. The record also includes a copy of appellant's October
16, 1997 letter to an AJ, in response to an agency motion for summary
judgment in Agency Numbers DON-95-60530-013 and DON-97-60530-004.
Therein, appellant contends that several co-workers received transfers,
and argues, inter alia, that he was retaliated against several times
when management refused to transfer him.
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. United
States Postal Service, 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.
The Commission finds that appellant had a reasonable suspicion of
discrimination regarding allegations (3) and(4) by October 15,1997.
Further, appellant's initial EEO Counselor contact occurred on April 24,
1998, and appellant failed to provide sufficient reason to justify an
extension of the 45-day time limitation.
CONCLUSION
Accordingly, the agency's decision is 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. 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:
Sept. 14, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations