01A22869_r
03-04-2003
Samuel K. Richardson, Complainant, v. Donald L. Evans, Secretary, Department of Commerce, Agency.
Samuel K. Richardson v. Department of Commerce
01A22869
March 4, 2003
.
Samuel K. Richardson,
Complainant,
v.
Donald L. Evans,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A22869
Agency No. 00-63-01653D
Hearing No. 110-A1-8077X
DECISION
The Commission finds the agency's May 22, 2002 decision dismissing
complainant's complaint proper pursuant to 29 C.F.R. � 1614.107(a)(2),
for untimely EEO Counselor contact. Complainant alleges discrimination
on the basis of race when he was terminated on February 25, 2000.
The agency, on March 20, 2001, dismissed complainant's complaint for
untimely EEO Counselor contact. Complainant appealed that decision and
the Commission, on August 28, 2001, remanded the complaint for a hearing
before an EEOC Administrative Judge (AJ). Richardson v. Department of
Commerce, EEOC Appeal No. 01A22869 (Aug. 28, 2001). The Commission found
that the agency improperly dismissed the complaint because complainant
had timely requested a hearing prior to the agency's dismissal. Id.
On March 14, 2002, an AJ issued a decision dismissing complainant's
complaint for untimely EEO Counselor contact. Specifically, the AJ
found that complainant was terminated on February 25, 2000, but did not
initiate EEO Counselor contact until May 10, 2000, which is beyond the
45-day limitation period. The agency, on May 22, 2002, issued a decision
adopting the AJ's March 14, 2002 decision. Complainant now appeals the
agency's May 22, 2002 decision.
The record indicates that complainant was terminated on February 25,
2000. The record contains a letter to complainant, dated February 24,
2000, informing him of the termination and informing him of the 45-day
limitation period to contact an EEO Counselor if he feels the termination
was a result of discrimination. Complainant, on May 10, 2000, initiated
contact with an EEO Counselor. Complainant argues on appeal that he did
not contact an EEO Counselor within the 45-day limitation period because
he later "obtained information he did not have when he was terminated."
Complainant asserts, by statement dated May 19, 2000, that "[he] was not
going to file a complaint of discrimination even through [he] suspected
it. May 8, [2000,]<1> several things were brought to [his] attention by
[Mr. X], so [he is] therefore filing the complaint of discrimination on
the grounds of [his] race." The Commission has consistently applied a
"reasonable suspicion" standard as opposed to a supportive facts standard
to determine when the 45-day limitation period is triggered. Thus, the
time limitation is not triggered until complainant reasonably suspects
discrimination, but before all the facts that support the charge of
discrimination have become apparent. We find that complainant should
have reasonably suspected discrimination on February 25, 2000, the date
of termination. Therefore, complainant's May 10, 2000 EEO Counselor
contact was untimely.
The agency's 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
March 4, 2003
__________________
Date
1Although complainant's statement actually
reflects 1999 as the year, the Commission understands that complainant
intends to convey the year 2000, logically after his termination.