Robert J. Green, Appellant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionOct 22, 1999
01986595 (E.E.O.C. Oct. 22, 1999)

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