Marcus L. Bowen, Appellant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionSep 7, 1999
01990981 (E.E.O.C. Sep. 7, 1999)

01990981

09-07-1999

Marcus L. Bowen, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.


Marcus L. Bowen v. Department of Agriculture

01990981

September 7, 1999

Marcus L. Bowen, )

Appellant, )

)

v. ) Appeal No. 01990981

) Agency No. 980461

Daniel R. Glickman, )

Secretary, )

Department of Agriculture, )

Agency. )

______________________________)

DECISION

On November 13, 1998, appellant filed an appeal with this Commission

from a final agency decision (FAD) dated September 22, 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.<1> In his complaint, appellant alleged that he was subjected to

discrimination on the bases of race (African-American) and in reprisal

for prior EEO activity when:

On October 8, 1997, appellant was not selected for the position of

Criminal Investigator, GS-1811-11/13, Law Enforcement and Investigations

[LE&I], under vacancy announcement number WO-442-97;

By letter dated August 28, 1997, the Regional Special Agent in Region

8 wrote to the Director of Forest Service LE&I [Director], "hire

[appellant]. . . . [I]t is time to show that we mean business on

moving more minorities into leadership positions. I plan on doing the

same thing here [Region 8]. . . . [T]his will keep the Lawrence Lucas'

of the world off our backs;"

On or about May 28, 1997, the Director told appellant regarding his

career in the Forest Service, that if the Director selected appellant

for promotion, "you will catch hell and so will I;"

On December 3, 1996, the Director threatened that if his name appeared in

any complaint, appellant would be retaliated against and advised, "Don't

step on your d**k [appellant], or you will be in Milwaukee forever," and

in later conversation [date unknown], regarding a hate mail incident and

conversation, appellant was advised that if he mentioned the conversation

to anyone he would "f*** [appellant's] career," and advised appellant

to stay way from an employee who had filed an EEO complaint; and

The agency failed to extend appellant's detail assignment that ended

May 24, 1997.

The agency accepted allegations (1) - (4), but dismissed allegation

(5) pursuant to EEOC Regulation 29 C.F.R. �1614.107(b), for untimely

counselor contact.

On appeal, appellant argues that he did not contact a counselor sooner

because he feared reprisal from the Director, who previously threatened

appellant as described in allegation (4), and was considering appellant

for a permanent position.

The record contains a copy of the Counselor's Report, which provides

that appellant initially contacted an EEO Counselor on November 17,

1997. The record also includes a copy of appellant's formal complaint,

dated March 14, 1998, in which appellant explains that in the discussion

referenced in allegation (4), the Director referred to an African-American

EEO complainant as a "criminal" who had evidence planted to support his

complaint by a "crack head" co-worker.<2> Appellant also alleged in his

complaint that the agency retaliated against him for giving a deposition

in his co-worker's complaint describing the Director's discriminatory

practices.

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.

Allegation (5) occurred more that 45-days prior to appellant's EEO

contact. Further, the Commission has repeatedly held that mere fear

of reprisal is an insufficient justification for extending the time

limitation for contacting an EEO Counselor. See Parker v. Department of

Veterans Affairs, EEOC Request No. 05940436 (Feb. 9, 1995). However, an

extension is justified where an appellant's fear of reprisal is based on

"severe intimidation," such as a supervisor's threat to fire an employee

if he files a complaint. Armstrong v. United States Postal Service,

EEOC Appeal No. 01985904 (July 3, 1997); cf. Duncan v. Department of

Veterans Affairs, EEOC Request No. 05970315 (July 10, 1998) (finding

that fear of reprisal does not justify untimeliness when appellant

articulates no concrete reason to fear retaliation, and appellant's fear

is not credible given appellant's prior EEO contact.); but see Posateri

v. United States Postal Service, EEOC Appeal No. 01960880 (Sept. 23,

1996) (delay in filing not justified where appellant was told that if

she ever filed a complaint, she would never receive her job back).

In the present case, appellant's fear of reprisal is not credible given

that he already disregarded the Director's warnings by giving a deposition

in his co-worker's EEO complaint. Clearly, appellant was not so fearful

that he could not have initiated timely EEO contact. Therefore, appellant

has not provided adequate justification to extend the time limitations

with regard to allegation (5). However, it is well-settled that past

alleged discriminatory events, which were not the subject of timely

complaints, may be used as background evidence for a timely complaint,

although they otherwise have no legal consequences under Title VII.

See United Airlines v. Evans, 431 U.S. 553, 558 (1977). Consequently,

appellant may use allegation (5) as background evidence for his accepted

allegations.

CONCLUSION

Accordingly, the agency's dismissal of allegation (5) is AFFIRMED,

but the allegation may be used as background for appellant's accepted

allegations.

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. 7, 1999

__________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1The agency was unable to supply a copy of a certified mail return receipt

or any other material capable of establishing the date appellant received

the agency's final decision. Accordingly, since the agency failed to

submit evidence of the date of receipt, the Commission presumes that

appellant's appeal was filed within thirty (30) days of receipt of the

agency's final decision. See, 29 C.F.R. �1614.402.

2The Counselor's Report reveals that a co-worker recalls the Director

making at least some of the statements in allegation (4), but "believes

[the threat] was a heads-up to all of them, not just appellant."