01990673_r
10-12-1999
Robert L. Dixon, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Robert L. Dixon, )
Appellant, )
)
v. ) Appeal No. 01990673
) Agency No. ACBWFO9802I0060
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
Upon review, we find that appellant's complaint was properly dismissed
pursuant to 29 C.F.R. �1614.107(b), on the grounds that appellant failed
to contact an EEO Counselor in a timely manner. Appellant alleged that
he was discriminated against when he was denied a quality step increase.
The agency stated that the date of the alleged discrimination was
November 18, 1996, the date that appellant received his performance
rating. Appellant initiated contact with an EEO Counselor on November
7, 1997. Appellant cited October 16, 1997, as the most recent date
of discrimination. On that date, appellant received a letter from the
Brigadier General that acknowledged that another employee in the same
command as appellant received a quality step increase after the issuance
of the Commander's Guidance on November 21, 1996.
Appellant stated that his request for a quality step increase was denied
by his immediate supervisor on March 13, 1997. According to appellant,
his immediate supervisor interpreted the Commander's Guidance to mean that
requests for quality step increases could not be submitted. The record
reveals that in a letter dated August 28, 1997, from appellant to the
Commanding General, appellant identified two employees in his command
who received quality step increases since the changes to the Incentive
Awards Program went into effect on November 21, 1996. It is clear based
on the letter dated August 28, 1997, that appellant had a reasonable
suspicion of discrimination at that point. Therefore, the letter from
the Brigadier General that appellant received on October 16, 1997, only
confirmed some of the information that appellant already had obtained.
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. We find
that appellant developed a reasonable suspicion of discrimination no
later than August 28, 1997, and that therefore, his contact of an EEO
Counselor more than 45 days later on November 7, 1997, was untimely.
Accordingly, the final agency decision dismissing appellant's complaint
on the grounds of untimely EEO contact 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 12, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations