Richmond A. Johnson, Appellant,v.John H. Dalton, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionNov 4, 1999
05981008 (E.E.O.C. Nov. 4, 1999)

05981008

11-04-1999

Richmond A. Johnson, Appellant, v. John H. Dalton, Secretary, Department of the Navy, Agency.


Richmond A. Johnson, )

Appellant, )

) Request No. 05981008

v. ) Appeal No. 01973320

) Agency No. 97-00251-023

John H. Dalton, )

Secretary, )

Department of the Navy, )

Agency. )

)

DENIAL OF REQUEST TO RECONSIDER

On July 28, 1998, the appellant timely initiated a request to the

Equal Employment Opportunity Commission (Commission) to reconsider the

decision in Johnson v. Department of the Navy, EEOC Appeal No. 01973320

(July 8, 1998). EEOC regulations provide that the Commission may, in its

discretion, reconsider any previous decision. 29 C.F.R. �1614.407(a). The

party requesting reconsideration must submit written argument or evidence

that tends to establish one or more of the following three criteria:

new and material evidence is available that was not readily available

when the previous decision was issued, 29 C.F.R. �1614.407(c)(1);

the previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy, 29

C.F.R. �1614.407(c)(2); and the decision is of such exceptional nature as

to have substantial precedential implications, 29 C.F.R. �1614.407(c)(3).

The issue presented is whether the previous decision properly affirmed the

final agency decision (FAD). The FAD partially dismissed appellant's

complaint, which alleged discrimination on the basis of his race

(African-American) and color (black) when: (1) on November 14, 1996,

the Zone Manager denied him overtime; (2) on November 19, 1996, he was

harassed by the Zone Manager and the Project Manager when they unjustly

criticized his work relying on false statements from other supervisors;

(3) in June 1992, the Welding Shop allowed his nuclear qualifications to

expire; (4) on August 20, 1996, the Welding Shop denied him the use of a

thermoluminescent dosimeter (TLD), thereby preventing him from supervising

in the nuclear work program; and (5) on December 2, 1990, the Welding Shop

denied him a permanent promotion to Welder Supervisor I (Foreman), WS-10.

The FAD accepted allegations (1) and (2) for investigation, and dismissed

allegations (3), (4), and (5) as untimely, finding that appellant had

failed to initiate contact with an EEO Counselor within forty-five (45)

days of the dates of the incidents at issue. The previous decision

affirmed the FAD. Specifically, the FAD found that the incident at issue

in allegation (3) arose more than four years before appellant initiated

counseling, the incident at issue in allegation (4) occurred 62 days

before he initiated counseling, and the incident at issue in allegation

(5) occurred almost six years before appellant initiated counseling.

In his request for reconsideration, the appellant argues that the

prior decision and the FAD relied on an erroneous fact with respect to

allegation (4). Specifically, he argues that his October 21, 1996, EEO

Counselor contact was timely as to allegation (4), because it occurred

thirty-four (34) days after his alleged September 17, 1996, demotion from

a supervisory position due to his lack of nuclear area qualifications.

Appellant contends that the August 20, 1996 date used in the FAD as the

applicable date for allegation (4) is incorrect, because on that date

he had been told "not having a nuclear qualification would not stop me

from being a foreman." The agency has not filed a reply.

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, which can occur before all the facts that support a

charge of discrimination have become apparent.

The record reveals that the prior decision did not rely on an erroneous

fact. Allegation (4), as presented by appellant in his formal complaint,

stated as follows: "on or about September 17, 1996 the Welding Shop

denied me a nuclear qualification allowing my use of a thermoluminescent

Dosimeter (TLD) and the opportunity to supervise nuclear work."

The formal complaint did not reference the alleged demotion appellant

raised on appeal and in his request for reconsideration. The EEO

Counselor's Report states that appellant told the EEO Counselor that

on August 20, 1996, he asked the Welding Shop nuclear coordinator to

permit appellant to return to nuclear work (including TLD use), which

he had not performed since July 1992, but the nuclear coordinator denied

this request, whereupon appellant met with the shop superintendent on or

about September 5, 1996. The EEO Counselor later executed a declaration,

submitted by the agency on appeal, confirming that appellant provided

this chronology during their initial interview. See Complaint File at

Enclosure 2-7. The EEO Counselor's declaration also stated that both

the nuclear coordinator and the shop superintendent had confirmed

this chronology of events when interviewed by the EEO Counselor,

as also indicated in the EEO Counselor's Report. Id. We find this

evidence persuasively refutes appellant's contention in his request for

reconsideration that he was told on August 20, 1996 that not having a

nuclear qualification would not stop him from being a foreman.

The FAD therefore properly concluded that appellant's time to initiate

contact with an EEO Counselor regarding allegation (4) began to

run on August 20, 1996, rendering his October 21, 1996 contact

untimely. Accordingly, after a review of the appellant's request

for reconsideration, the previous decision, and the entire record, the

Commission finds that the appellant's request fails to meet the criteria

of 29 C.F.R. �1614.407(c), and it is the decision of the Commission to

deny the appellant's request. The decision in EEOC Appeal No. 01952093

remains the Commission's final decision.

RIGHT TO FILE A CIVIL ACTION (P0993)

This decision of the Commission is final, and there is no further right of

administrative appeal from the Commission's decision. You have the right

to file a civil action in an appropriate United States District Court. 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.

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

4 05981008

01973320

97-00251-023

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:

November 4, 1999

DATE Frances M. Hart

Executive Officer

Executive Secretariat