01983338
01-08-1999
Phillip M. Earnest, Appellant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Phillip M. Earnest v. Department of Justice
01983338
January 8, 1999
Phillip M. Earnest, )
Appellant, )
)
v. ) Appeal No. 01983338
) Agency No. I-97-0123
Janet Reno, )
Attorney General, )
Department of Justice, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated February 26, 1998, which the agency issued pursuant
to EEOC Regulation 29 C.F.R. �1614.107(b). The Commission accepts the
appellant's appeal in accordance with EEOC Order No. 960, as amended.
The appellant alleged that he was discriminated against on the basis of
reprisal when his application for an instructor position at the Border
Patrol Academy was not accepted on or about August 15, 1996. He first
sought EEO counseling on March 6, 1997.
The agency dismissed the appellant's complaint for untimely EEO counselor
contact.
On appeal, the appellant contends that he first followed the chain of
command to find out why he was not selected for the instructor position
so he could improve on his weaknesses. When he received no response from
the Chief of the Border Patrol Academy, he filed a Freedom of Information
Act (FOIA) request. The appellant contends that he did not suspect
discrimination until he received the response to his FOIA request when he
found that the Service had no reason for not accepting his application.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) provides that the agency or
the Commission shall extend the 45-day time limit when the individual
shows that he did not know and reasonably should not have known that the
discriminatory matter or personnel action occurred. The limitations
period is not triggered until a complainant reasonably should have
suspected discrimination, but before all the facts that would have
supported a charge of discrimination had become apparent. Schermerhorn
v. United States Postal Service, EEOC Request No. 05940729 (February 10,
1995).
The Commission finds that the appellant should have suspected reprisal
discrimination when he learned that his application had been denied.
According to the appellant's complaint, he has been continually turned
down while Agents of lesser seniority and experience have been chosen
over him.
In so finding, the Commission observes that the FOIA response contains no
information that would trigger a suspicion of reprisal discrimination.
The FOIA response informed the appellant that the agency had not
been able to locate any records that were responsive to his request
for information. The response indicated that if the appellant was
interested in a particular job he needed to provide the agency with a
vacancy announcement number because the merit promotion case files are
filed by announcement number and not location.
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of the appellant's April 10, 1997 complaint.
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. 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 (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:
January 8, 1999
______________
Date Ronnie Blumenthal, Director
Office of Federal Operations