01983588
03-31-2000
Richard Anderson, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Richard Anderson v. Department of the Navy
01983588
March 31, 2000
Richard Anderson, )
Complainant, )
)
v. )
) Appeal No. 01983588
Richard J. Danzig, ) Agency No. 98-60701-001
Secretary, )
Department of the Navy, )
Agency. )
____________________________________)
DECISION
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. and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>
The Commission accepts the appeal in accordance with 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
On June 11, 1997, complainant contacted the EEO office regarding claim of
discrimination based on religion, reprisal, and age. Informal efforts
to resolve complainant's concerns were unsuccessful. Accordingly,
complainant filed a formal complaint on October 2, 1997. The agency
framed the claims as follows:
a) Complainant's performance appraisal ratings for Fiscal Year (FY)
1995 and FY-1996 were not changed pursuant to the October 4, 1995 final
agency decision regarding complainant's previous complaints; and,
b) After complainant was subjected to the Reduction in Force (RIF)
at the Naval Weapons Station (NWS), Seal Beach, in February 1994,
complainant was required to drive a longer distance to his new job at
Camp Pendleton than he had been driving to his previous job at NWS Seal
Beach, for which complainant is now claiming mileage and overtime.
The agency issued a FAD on March 2, 1998, dismissing the complaint.
Specifically, claim 1 was dismissed for untimely counselor contact.
Moreover, the agency indicated that complainant also had the "opportunity
to challenge the adequacy of the corrective action" by appealing the
Employee Appeals and Review Board (EARB) decision issued on October 4,
1995, but failed to do so. Regarding claim 2, the FAD dismissed the
claim based on complainant's failure to appeal the EARB's decision or
seek counseling on the claim. Claim 2 was dismissed "on the same grounds
as the first."
Volume64 Fed. Reg. 37,644, 37656 (1999) (to be codified and hereinafter
referred to as 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.
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.
In the instant case, complainant alleged that he was subjected to
discrimination when his FY-1995 and FY-1996 ratings were not changed and
when his February 1994 RIF required him to drive a longer distance to his
new job. Complainant did not contact the EEO counselor until June 11,
1997, well beyond the forty-five day limitation. On appeal, complainant
argues that he immediately filed a grievance to have his rating corrected.
Further, he tried to resolve the issues through the chain of command.
The Commission has consistently held, however, that utilization of
internal agency procedures, union grievances, and other remedial processes
does not toll the time limit for contacting an EEO Counselor. See Kramer
v. U.S. Postal Service, EEOC Appeal No. 01954021 (October 5, 1995);
Williams v. U.S. Postal Service, EEOC Request No. 05910291 (April 25,
1991). Complainant also contends that he did not go to an EEO counselor
because he "feared that they would see fit to combine with, and delay
processing" of his other claim. The appearance of conflict also concerned
complainant, because the EEO director allegedly shared an office the
attorney which represented the agency in complainant's original claim.
The Commission finds, however, that complainant has failed to present
sufficient reason for extending the time limitation. Therefore, we find
that the agency properly dismissed the complaint for untimely
counselor contact. Because of our disposition we do not consider whether
the claims were properly dismissed on other grounds.
Accordingly, the agency's decision to dismiss the complaint was proper
and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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 31, 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.