Samuel A. Stuck, Appellant,v.Alexis M. Herman, Secretary, Department of Labor, Agency.

Equal Employment Opportunity CommissionApr 13, 1999
01982068 (E.E.O.C. Apr. 13, 1999)

01982068

04-13-1999

Samuel A. Stuck, Appellant, v. Alexis M. Herman, Secretary, Department of Labor, Agency.


Samuel A. Stuck v. Department of Labor

01982068

April 13, 1999

Samuel A. Stuck, )

Appellant, )

)

v. ) Appeal No. 01982068

) Agency No. 8-07-023

Alexis M. Herman, )

Secretary, )

Department of Labor, )

Agency. )

______________________________)

DECISION

On January 14, 1998, appellant filed a timely appeal with this Commission

from a final agency decision (FAD) dated December 23, 1997, pertaining

to his complaint of unlawful employment discrimination in violation of

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e

et seq. In his complaint, appellant alleged that he was subjected to

discrimination on the basis of sex (male) when, ongoing from some time in

1996, appellant was subjected to disparate treatment by his supervisors

(S1 and S2). Specifically, appellant alleged that S1 and S2 took the

following actions:

Discredited appellant's work and career;

Removed appellant from all outside assignments;

Denied appellant normal working conditions;

Reviewed appellant's work in a disparate manner;

Gave appellant conflicting and impossible tasks, while repeatedly

changing task goals; and

"[M]uch more."

The agency dismissed appellant's complaint pursuant to EEOC Regulation

29 U.S.C. �1614.107(b), for failure to initiate contact with an EEO

Counselor in a timely manner. Specifically, the agency determined that

despite numerous requests by the EEO Counselor for appellant to identify

the dates on which these actions occurred, appellant failed to comply.

Consequently, the agency concluded that appellant failed to provide

indication that any of the actions occurred within forty-five (45)

days of appellant's September 24, 1997 initial EEO Counselor contact.

On appeal, appellant contends that he provided the agency a detailed

summary of the ongoing and continuous alleged disparate treatment and that

the summary contained the relevant dates. Finally, appellant asserts that

the agency's inquiry should not be focused on any particular incident,

but on the pattern of alleged discrimination.

The Commission notes that the record contains a 23-page document which

contains a summary of events that occurred at appellant's workplace

from May 1, 1996, through October 1, 1997. All of the entries consist

of brief, incomplete sentences, many of which merely describe everyday

occurrences at appellant's work; e.g. "off-annual leave."

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. USPS,

EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period

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 he was not notified of the

time limits and was not otherwise aware of them, that he did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence he was prevented

by circumstances beyond his control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

Where, as here, there is an issue of timeliness, "[a]n agency always bears

the burden of obtaining sufficient information to support a reasoned

determination as to timeliness." Guy, v. Department of Energy, EEOC

Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of

Defense, EEOC Request No. 05920506 (August 25, 1992)). In addition, in

Ericson v. Department of the Army, EEOC Request No. 05920623 (January

14, 1993), the Commission stated that the agency has the burden

of providing evidence and/or proof to support its final decisions.

See Gens v. Department of Defense, EEOC Request No. 05910837 (January

31, 1992). In the instant case, we find that the agency did not meet

that burden. Without identifying the dates on which the instances

of alleged discrimination occurred, the agency merely found that

appellant failed to show that they occurred within the forty-five (45)

day limitation period. This unsupported statement is insufficient to

qualify as a reasoned determination as to timeliness. We acknowledge the

difficulty the agency had in obtaining specific dates from appellant;

however, that difficulty does not justify dismissal for untimeliness

without supporting documentation or evidence.

However, EEOC Regulation 29 U.S.C. �1614.106(c) provides that a

complaint must contain a statement which is sufficiently precise to

describe generally the action(s) or practice(s) that form the basis of

the complaint. In the instant case, we find that appellant's general

allegations of being subjected to disparate treatment, are insufficiently

precise to state a processable claim under the EEOC regulations.

Appellant failed to identify the specific actions taken against him

and the person(s) responsible for each alleged act of discrimination.

Moreover, the summary provided by appellant contains only partial

statements, many of which are unrelated to appellant's allegations

of discrimination. Based on the foregoing, we find that dismissal is

proper pursuant to 29 U.S.C. �1614.107(a), for failure to state a claim.

See Diaz v. Department of the Air Force, EEOC Request No. 05931049

(April 21, 1994).

Accordingly, the agency's final decision dismissing appellant's complaint

is AFFIRMED for the reasons set forth herein.

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. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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:

April 13, 1999

____________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations