01986595
10-22-1999
Robert J. Green, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Robert J. Green v. Department of the Navy
01986595
October 22, 1999
Robert J. Green, )
Appellant, )
)
v. ) Appeal No. 01986595
) Agency No. 98-00174-007
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
On August 31, 1998, appellant filed a timely appeal of a July 20, 1998
final agency decision, which was received by him on August 1, 1998,
dismissing his complaint, pursuant to 29 C.F.R. �1614.107(b), due to
untimely EEO Counselor contact.
In its final decision, the agency identified the allegations of
appellant's June 24, 1998 complaint as whether appellant was discriminated
against when:
Since 1995, he was continuously denied the opportunity to be promoted
and or reassigned from an Explosive test Operator, WG-6502-08, into the
General Schedule (GS), as an Engineering Technician;
By denying him the above opportunity, he was held back in pursuing his
career; he was never given a chance to prove that he could excel with
any work in any job title; and that his name had been slandered; and
On December 2, 1997, he was inappropriately detailed to the Operations
Branch (Code 2230) and permanently reassigned there, effective March 15,
1998.
The agency stated that the most recent incident occurred on March 15,
1998, but appellant did not initiate EEO counseling until May 29, 1998.
The agency also indicated that although appellant previously contacted an
EEO counselor in February 1997, concerning the denial of his conversion
to a GS Engineering Technician, he, subsequently, withdrew his informal
complaint on March 4, 1997. Specifically, appellant notified the
Counselor that he did not want to further pursue the matter through the
EEO complaint processing.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of the EEO Counselor within
45 days of the alleged discriminatory event, or the effective date of
an alleged discriminatory personnel action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the limitation period
is triggered under the EEOC Regulations. See 29 C.F.R. �1614.105(a)(2);
Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6,
1988). Thus, the limitations period is not triggered until a complainant
should reasonably suspect discrimination, but before all the facts that
would support a charge of discrimination have become apparent.
The record indicates that although appellant previously contacted an EEO
Counselor in February 1997, with regard to the denial of his conversion
to a GS Engineering Technician in February 1997, he, subsequently,
withdrew that informal complaint on March 4, 1997. The Commission
has previously held that a complainant may not request reinstatement
of an informal complaint unless the complaint was withdrawn pursuant
to a settlement agreement. See Karp v. United States Postal Service,
EEOC Appeal No. 01913583 (November 18, 1991). Furthermore, once a
complainant has withdrawn an informal complaint, absent a showing of
coercion, a complainant may not reactivate the EEO process by filing
a formal complaint on the same issue. See Fuson v. Department of the
Navy, EEOC Request No. 05932943 (July 7, 1994); Ritchie v. Department of
Veterans Affairs, EEOC Appeal No. 01934486 (January 7, 1994). To allow
such a practice would in effect extend the limitations period for filing
a formal complaint ad infinitum and subvert the need for timeliness and
efficiency in the EEO administrative process. Here, appellant failed
to show that he was coerced when he withdrew his informal complaint on
March 4, 1997.
The record indicates that appellant contacted an EEO Counselor concerning
his complaint, including the denial of the conversion, described above,
on May 29, 1998. The record indicates that there was no promotion
or reassignment to the GS Engineering Technician position during 1997
and 1998. The record, undisputed by appellant, further indicates that
appellant did not apply for two upward mobility positions for Chemical
Engineering Technicians in Code 9430 in October 1997, and Code 9410
in February 1998. Since the latest alleged discriminatory incident
occurred on March 15, 1998, i.e., when he was permanently reassigned
to the Operations Branch, we find that appellant's May 29, 1998 EEO
Counselor contact was untimely. Appellant failed to present adequate
justification to extend the applicable time limit. Accordingly, the
agency's final decision is hereby AFFIRMED.
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:
October 22, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations