01990402
12-22-1999
Ronald Jones, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Ronald Jones, )
Complainant, )
)
v. ) Appeal No. 01990402
) Agency No. BHFR9807I1270
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
____________________________________)
DECISION
On October 16, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD), dated September 10, 1998,
which dismissed his complaint.<1> The Commission accepts the appeal in
accordance with EEOC Order No. 960, as amended.
On July 7, 1998<2> complainant contacted an EEO counselor regarding
claims of discrimination based on race, disability, and reprisal.
Informal efforts to resolve complainant's concerns were unsuccessful.
Accordingly, complainant filed a formal complaint dated July 23, 1998.
The agency defined the claims as follows:
In December 1995 a co-worker was released from the Army Reserves,
but continued to remain employed although he received several DWI's
and his drivers license was suspended;
On November 20, 1993 complainant received his pay statement, which
indicated that he had not been paid for the advance sick leave that he
had requested;
On May 15, 1998, while reviewing his medical file, complainant found
a letter written by his supervisor which he believed to contain false
statements in reference to complainant's light duty status; and,
On February 17, 1998 complainant was harassed with verbal comments by his
supervisor and another individual in regards to complainant's selection
as union representative.
The agency dismissed claims 1, 2 and 4 for untimely counselor contact.
Claims 1 and 4 were also dismissed for failure to state a claim. The FAD
dismissed claim 2 and claim 4 for raising a matter that had not been
brought to the attention of a counselor. Claim 3 was dismissed for
stating the same claim that is pending before the agency.
On appeal, complainant elaborates on his claims. He also contends that
the alleged agency actions have caused him harm and injury, including
absences from work, stress and mental exhaustion.
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 Ball v. U. S. Postal Service,
EEOC Request No. 05880247 (July 6, 1988). 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.
In the instant case, complainant's July 7, 1998 contact was well beyond
the forty-five (45) day time limitation with respect to claims 1, 2,
and 4. Complainant's contact was approximately two and a half years
(claim 1), four years and eight months (claim 2), and four months
(claim 4) after the alleged discriminatory events occurred. Further,
we do not find sufficient reason for extending the time limitation.
Complainant does not contend that he was unaware of the time limitations
for contacting a counselor. Moreover, based on his prior complaint, we
find that complainant knew or should have known of the time limits. Nor
does complainant argue that he did not reasonably suspect discrimination
until forty-five days prior to his EEO contact. Therefore, we find that
the agency properly dismissed claims 1, 2, and 4 for untimely counselor
contact. Because of our disposition we do not consider whether claims 1,
2, and 4 were properly dismissed on other grounds.
EEOC Regulation 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and
herein cited as, 29 C.F.R. � 1614.107(a)(1)) provides that a complaint
should be dismissed if it states the same claim that is pending or has
already been decided by the agency or Commission. The Commission has
interpreted this regulation to require that the complaint must set forth
the "identical matters" raised in a previous complaint filed by the same
complainant, in order for the subsequent complaint to be rejected. See
Russell v. Department of the Army, EEOC Request No. 05910613 (August
1, 1991).
Here, the agency dismissed claim 3 on the grounds that the claim is
currently being addressed by the agency in Case No. BHFR9806I0869.
Based on a review of the record, we find that complainant's July 2, 1998
(Case No. BHFR9806I0869) complaint contains the same claim as set forth
in claim 3. Therefore, claim 3 was properly dismissed pursuant to 29
C.F.R. �1614.107(a)(1).
Accordingly, the agency's decision to dismiss complainant's complaint
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
Dec. 22, 1999
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2The FAD and the Counselor's Report indicate that initial contact with
the EEO office was made on July 17, 1998. However, the Counselor's
Report states that initial contact was made with the counselor earlier,
on July 7, 1998. Therefore, we rely on the this date in our decision.