01992788
03-17-2000
Rayford King, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Rayford King, )
Complainant, )
)
v. )
) Appeal No. 01992788
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
____________________________________)
DECISION
On February 18, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) 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> The
Commission accepts the appeal in accordance with EEOC Order No. 960,
as amended.
On July 8, 1998, complainant contacted the EEO office regarding claims
of discrimination based on race (Black). Informal efforts to resolve
his concerns were unsuccessful. Accordingly, on January 25, 1999,
complainant filed a formal complaint.<2>
The agency framed the claims as follows:
1) Complainant was denied training; and,
2) A fax report of a crime prevention survey containing complainant's
name was released.<3>
The agency issued a FAD dismissing claim 1 for untimely counselor contact,
finding that the most recent denial of training occurred in 1997 and
more than forty-five days before complainant's EEO counselor contact.
Claim 2 was dismissed as moot. The agency indicated that the survey
was �inadvertently sent� and that subsequently, complainant's name had
been removed from the document.
On appeal, complainant raises no new contentions regarding the grounds
for dismissal. He reiterates the merits of his complaint and his
concern that the information uncovered by the survey could hinder future
employment opportunities. Complainant also argues that the survey matter
was the beginning of nine months of reprisal, ending in his termination
on February 4, 1999.
As a preliminary matter, we note that for the first time on appeal,
complainant raises matters that were not addressed during pre-complaint
counseling or in his formal complaint. Complainant is advised that
if he wishes to pursue this claim, through the EEO process, he must
initiate contact with an EEO counselor within 15 days after he receives
this decision. The Commission advises the agency that if complainant
seeks EEO counseling regarding the new allegation within the above 15
day period, the date complainant filed the appeal statement in which
he raised this claim with the agency shall be deemed to be the date
of the initial EEO contact, unless he previously contacted a counselor
regarding these matters, in which case the earlier date would serve as
the EEO counselor contact date. Cf. Qatsha v. Department of the Navy,
EEOC Request No. 05970201 (January 16, 1998).
Claim 1
Volume 64 Fed. Reg. 37,644, 37656 (1999) (to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. � 1614.107(a)(2)) 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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Complainant contends that he was discriminated against when he was denied
training on several occasions: July 25, 1996; January 5, 1997; and in
May 1997. The Counselor's Report reflects that complainant did not
contact an EEO Counselor until July 8, 1998, well beyond the forty-five
day time limitation. Complainant does not contend that he was unaware
of the time limit or that he did not reasonably suspect discrimination
until a later date. Accordingly, we do not find sufficient reason to
extend the time limit. Therefore, the agency's dismissal of claim 1
for untimely counselor contact was proper and is AFFIRMED.
Claim 2
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(5)) provides for the dismissal of a
complaint when the issues raised therein are moot. To determine whether
the issues raised in complainant's complaint are moot, the factfinder
must ascertain whether (1) it can be said with assurance that there is
no reasonable expectation that the alleged violation will recur; and
(2) interim relief or events have completely and irrevocably eradicated
the effects of the alleged discrimination. See County of Los Angeles
v. Davis, 440 U.S. 625, 631 (1979); Kuo v. Department of the Navy, EEOC
Request No. 05970343 (July 10, 1998). When such circumstances exist,
no relief is available and no need for a determination of the rights of
the parties is presented.
Complainant claims that he was discriminated against when a fax report of
a crime prevention survey containing his name was released. Specifically,
the document cited complainant's name as a background check which �came
back with less than desirable results�. The findings of the check
were also included. In his pre-complainant form and formal complaint,
complainant requested that, as corrective action, his name be removed from
the survey. Complainant later admits, and the record reflects, that his
name was removed from the document. We also note that complainant's
concerns about future harm, the discovery of the survey information
during background checks for potential employment, is too speculative.
Complainant is not longer �aggrieved� by the fax report. Accordingly, the
agency's decision to dismiss claim 2 as moot was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
March 17, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2Complainant originally filed the complaint on December 29, 1998.
The agency issued a letter, dated January 6, 1999, indicating that the
complaint lacked the necessary specificity and requested additional
details. Complainant responded in a document dated January 25, 1999.
3The FAD did not number the claims, but we do so here for purposes of
clarification.