01a43801
08-31-2004
Robert L. Newton, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Robert L. Newton v. Department of the Army
01A43801
August 31, 2004
.
Robert L. Newton,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A43801
Agency No. ARCEVICK04FEB0020
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated April 6, 2004, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
In his formal complaint dated March 20, 2004, complainant alleged that
he was subjected to discrimination on the bases of disability and age.<1>
In its final decision dated April 6, 2004, the agency determined that
complainant's complaint was comprised of the following two claims:
on November 20, 2003, [complainant was not] selected for the position
of Park Ranger, GS-0025-09 at Enid Lake Field Office (Announcement
No. SWGR03291202), (a 27 year old white male was selected); and
on November 20, 2003, [complainant was not] selected for the position
of Park Ranger (GIS), GS-0025-07/09 at Grenada Lake Field Office
(Announcement No. SWGR03405956), (a 27 year old white male was selected).
The agency dismissed complainant's complaint for untimely EEO Counselor
contact, pursuant to 29 C.F.R. � 1614.107(a)(2). Specifically, the agency
stated that complainant did not initiate EEO counseling until January 21,
2004, the date complainant and complainant's representative sent a formal
EEO complaint to the agency. The agency further asserted that �[t]here
were earlier e-mails to the ...District EEO Office, but the intent of
[c]omplainant was unclear.� Moreover, the agency stated that �[t]hese
earlier e-mails can best be described as some sort of strategy session
between complainant and the union representative.�
On appeal, complainant, through his representative, asserts that the
agency improperly dismissed his complaint. Specifically, complainant's
representative states that �[complainant] and his representative [made]
initial contact with an EEO official on December 1, 2003 and December
10, 2003.� Complainant's representative further states that since no
one from the EEO office met with complainant and his representative,
they decided to file a formal complaint.
In response, the agency asserts complainant contacted an EEO Specialist
(E1) via telephone on November 21, 2003 and on November 24, 2003. The
agency argues that during the November 24, 2003 telephone conversation,
complainant stated to E1 that he did not want to file an EEO complaint
regarding his non-selections. The agency asserts that on December 1,
2003, E1 received an e-mail from a union official (U1) referencing
a meeting scheduled for December 19, 2003. The agency states that
E1 informed U1 that she would not attend this meeting and that if any
employees decided to file an EEO complaint they needed to indicate to her
their intent to do so. Moreover, the agency asserts that complainant,
with the exception of his phone calls made in November 2003, did not
make contact with an EEO official until he sent a formal EEO complaint
to the agency on January 21, 2004.
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.
The Commission finds that the agency's dismissal of complainant's
complaint was proper. The record contains copies of numerous e-mails
between U1 and E1. In an e-mail dated December 1, 2003, U1 requests to
meet with E1 on December 19, 2003 with complainant and another named
agency employee (A1) regarding EEO counseling. In response to this
e-mail, E1 states, in an e-mail to U1 dated December 5, 2003, that
if either of the employees wish to file an EEO complaint they need
to contact her and she will assign an EEO Counselor. In an e-mail
dated December 9, 2003, U1 states that the employees want to initiate
an EEO Counseling meeting. In this e-mail, U1 also asks both agency
employees (A1 and complainant) to e-mail E1 and request an EEO Counselor.
While the record contains an e-mail from A1 dated December 10, 2003,
to E1 requesting someone from the EEO office to meet with him and union
officials regarding a possible EEO complaint, the record is devoid of an
e-mail or any other documentation from complainant, himself, requesting an
EEO Counselor. While the Commission notes that complainant, on appeal,
submits a copy of an e-mail that he wrote to U1 dated December 11, 2003,
in which he requests E1 to send someone from the EEO office to meet with
him on December 19, 2003, the record does not reflect that complainant
sent this e-mail to E1.
The Commission has generally held that a representative's contact with
an EEO official is inadequate as initial EEO Counselor contact where
complainant failed to inform the agency that the representative was
acting on his behalf. See Brinson v. Department of the Army, EEOC
Appeal No. 01981424 (December 9, 1998). The record does not reflect
that complainant informed the EEO office that U1 was his designated
representative in this EEO matter until January 21, 2004, the date he
sent the agency a formal EEO complaint. Therefore, the Commission finds
that complainant did not initiate EEO Counselor contact until January 21,
2004, beyond the applicable limitation period.
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 31, 2004
__________________
Date
1The record reflects that complainant
initially sent a formal EEO complaint form to the agency on January 21,
2004. The agency construed this formal EEO complaint as a request for EEO
counseling and complainant was assigned an EEO Counselor. Upon receiving
his Notice of Right to File a Formal Complaint, complainant filed a
formal complaint dated March 20, 2004.