Rayford King, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionMar 17, 2000
01992788 (E.E.O.C. Mar. 17, 2000)

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.