01A45211
11-16-2004
Patrick T. Dege, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Patrick T. Dege v. Department of the Interior
01A45211
11-16-04
.
Patrick T. Dege,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A45211
Agency No. FNP-2004-013
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO counselor contact. Complainant, an agency employee living in South
Carolina, alleged that he was discriminated against on the bases of
race (Euro-American), color (Caucasian), sex (male) and age (43) when
he was not selected for the position of Fire Prevention Specialist,
GS-0301-09/11, which was located at the Southeast Regional Office in
Atlanta, Georgia.
According to complainant, he became aware of his non-selection on February
17, 2003. On March 24, 2003, he wrote a letter to the Human Resources
Department located in Denver and provided copies to A-1, Assistant EEO
Manager of the Southeast Regional Office and the EO Program Manager in
Washington, D.C. In the letter, complainant indicated that, "suspicions
of possible discrimination have arisen in regard to the application and
the selection criteria and/or method utilized to fill the position."
Complainant also stated that:
In order to begin the determination as to whether or not a case of illegal
discrimination has occurred, I am requesting that you send me a copy
of the certificate of eligibles along with the numerical rankings and
scores that were used in the initial ranking of candidates. Additionally,
I am requesting a copy of the selection criteria.
Finally, we note complainant's statement that, "These materials are
needed to begin an investigation of the possibility of a case of illegal
discrimination.�
In a letter dated April 22, 2003, A-1 wrote complainant and provided him
with the agency's procedures for processing a formal EEO complaint under
29 C.F.R. � 1614. These procedures contained a provision indicating
that a complainant had 45 days to present his claim to an EEO counselor.
Complainant was also told that if he had any questions he should contact
the office. Notwithstanding A-1's letter, complainant did not contact an
EEO counselor until September 23, 2003, after he received the information
that he sought.
The agency issued a FAD dismissing the complaint on the grounds that
complainant sought EEO counseling in an untimely manner. This appeal
followed.
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides, in pertinent part,
that the agency shall dismiss a complaint or a portion of a complaint that
fails to comply with the applicable time limits contained in � 1614.105.
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.
After a careful review of the record, we find that complainant had a
reasonable suspicion that he had been discriminated against, at the
very least, on March 24, 2003 when he wrote various agency officials.
The information that A-1 provided complainant, in April 2003, set
forth the proper procedures and time considerations for engaging in
the EEO process. Complainant was under no obligation to wait until,
September 23, 2003, after he had assembled all of the facts that
would support his claim of discrimination. On appeal, complainant
maintained that he contacted A-1 within the 45-day limitation period;
therefore, he should be deemed to have contacted an EEO counselor in a
timely manner. We disagree. The Commission has held that in order to
establish EEO counselor contact, an individual must contact an agency
official logically connected to the EEO process and exhibit an intent
to begin the EEO process. Allen v. United States Postal Service, EEOC
Request No. 05950933 (July 9, 1996). We find that complainant did
not contact A-1 with the intent of initiating EEO counselor contact.
The record clearly indicated that he was seeking information in order
to decide whether or not discrimination had occurred. After receiving
A-1's response in April, complainant waited until September before he
contacted a counselor to begin the EEO process.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___11-16-04_______________
Date