01994694
12-23-1999
Rufus D. Catchings, Appellant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Rufus D. Catchings, )
Appellant, )
)
v. ) Appeal No. 01994694
) Agency No. WBS98012
Bruce Babbitt, )
Secretary, )
Department of the Interior, )
Agency. )
)
DECISION
We find that the agency's April 19, 1999 decision dismissing a portion of
appellant's complaint on the grounds of untimely EEO counselor contact
and failure to state a claim is proper pursuant to the provisions of 29
C.F.R �1614.107 (a) and (b).
The record shows that appellant sought EEO counseling on September 17,
1997, alleging that he had been discriminated against on the basis of race
(African American) when he was subject to a pattern of discrimination
dating back to 1987. Subsequently appellant filed a formal complaint
of discrimination alleging that he had been discriminated against on the
bases of race and age (02-09-57) when: (1) in 1987, management attempted
to deny him a permanent position promised to him, in writing, by the
Chief Geologist; (2) management hired him at the GS-11 grade level
while some non-minority scientists with the same or less scientific
experience were hired at the GS-12/13 grade level; (3) has been treated
differently than similarly situated non-minority scientists when comparing
the scientific support staff provided to him for his research projects;
(4) has been routinely denied the opportunity to serve as manager in the
Western Region, Menlo Park while some of his non-minority colleagues
have been given the opportunity; (5) the Branch of Seismology Peer
Evaluation/Western Earthquake Hazards Team Peer Evaluation Panels failed
to recommend him for promotion to GS-14 and GS-15; the 1997 and 1998
Western Earthquake Hazards Team Peer Review Panels were insulting and
unfair in their assessments of appellant's accomplishments; (6) although
he meets the criteria for GS-15 set forth in the Research
The record shows that appellant sought EEO counseling on June 12, 1998,
alleging that she had been discriminated against on the bases of race
(Black) and physical disability (epileptic seizure disorder) when: (1)
on September 2, 1997, she was given a predisciplinary interview which
led to the issuance of a letter of warning on September 24, 1997; and,
(2) on June 9, 1998, her reporting time was changed back to 4:00 a.m.
During the inquiry of her informal complaint appellant stated that she had
not sought EEO counseling earlier in order to avoid trouble and because
she wanted to show a pattern of discrimination. Appellant subsequently
filed a formal complaint concerning these issues.
The agency issued a final decision accepting allegation (2) for
investigation. Allegation (1) was dismissed on the grounds of untimely
EEO counselor contact.
The Commission applies a "reasonable suspicion" standard to the
triggering date for determining the timeliness of the contact with an
EEO counselor. Cochran v. United States Postal Service, EEOC Request
No. 05920399 (June 18, 1992). Under this standard, the time period
for contacting an EEO counselor is triggered when the complainant should
reasonably suspect discrimination, but before all the facts that would
support a charge of discrimination may have become apparent. Id.;
Paredes v. Nagle, 27 FEP Cases 1345 (D.D.C. 1982).
The record shows that in September 1997, appellant was given a
predisciplinary interview which resulted in a letter of warning. She
did not seek EEO counseling until September 2, 1998, almost a year after
the incidents in question. Appellant has acknowledged that she did not
seek EEO counseling to avoid trouble and to show a pattern of harassment.
Based on the foregoing, we find that appellant did not seek EEO counseling
in a timely manner. The dismissal of allegation (1) is 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. �l6l4.604(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 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:
Dec. 23, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations