01991513
11-05-1999
Larry N. Schmitt v. Department of the Army
01991513
November 5, 1999
Larry N. Schmitt, )
Appellant, )
)
v. ) Appeal No. 01991513
) Agency No. AFDEFO9809I0560
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
On December 12, 1998, the appellant filed a timely appeal with this
Commission from a final agency decision (FAD) dated November 23, 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., the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and � 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq. In his
complaint, the appellant alleged that he was subjected to discrimination
on the bases of race (Caucasian), color (white), religion (Protestant),
disability (physical), sex (male), age (55), national origin (American)
and reprisal when he was denied training and a special lifting device.
On October 30, 1998, the agency requested that the appellant provide
the following specific information: 1) the dates he had requested the
special lifting device; 2) the training he had requested, when he had
requested it and when it was denied; and 3) when he had filed a previous
EEO complaint, the basis and issue of the complaint and when and why he
withdrew the complaint.
On November 17, 1998, the appellant responded to the agency's request
for specificity stating that he had requested the special lifting
device on five occasions during the period of July 1989 to May 1994.
The appellant also stated that he had requested six various training
opportunities, during the period of November 1989 through November 1994,
which had all been denied. Lastly, the appellant stated that he filed
an EEO complaint in April 1994, which he withdrew on May 11, 1994,
because he had been promised he could attend a local college.<1>
The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(b),
for failure to comply with the applicable time limits. The agency
further stated that the issues in the appellant's complaint had not
resulted in an "ultimate" employment decision and therefore, were not
within the purview of Title VII.
On appeal the appellant reiterates the assertions in his complaint.
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. USPS,
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.
29 C.F.R. � 1614.105(a)(2) further provides 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 instant case, the record shows that the appellant was familiar
with the EEO process. The record further shows that after the appellant
withdrew his EEO complaint on May 11, 1994, he was allegedly denied
training opportunities three additional times within the period between
May 21, 1994 and November 1994. Yet, the appellant failed to seek EEO
counseling until September 24, 1998. We find that the appellant failed
to act with due diligence or prudent regard for his rights.
Accordingly, we AFFIRM the agency's dismissal of the appellant's complaint
for failure to comply with the applicable time limits.
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:
Nov. 5, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 We note here that the record contains no evidence that a written
agreement was entered into by the parties in May 1994.