01984180_r
06-10-1999
Stephen L. Collins, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Stephen L. Collins, )
Appellant, )
) Appeal No. 01984180
v. ) Agency No. BUDEFO9803I0060
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
On May 6, 1998, appellant filed an appeal from a March 30, 1998 final
agency decision dismissing his complaint for failure to contact an EEO
Counselor in a timely manner. The agency failed to provide a certified
mail return receipt or any other material capable of establishing the
date when appellant received the final agency decision. Accordingly,
the Commission presumes that appellant's appeal was filed within 30 days
of appellant's receipt of the agency's final decision. Accordingly,
the appeal is accepted as timely (see, 29 C.F.R. �1614.402(a)), in
accordance with the provisions of EEOC Order No. 960, as amended.
In his March 16, 1998 complaint, appellant alleged that he was
discriminated against on the bases of his disability (heart condition)
and in reprisal. The final agency decision framed the allegation of the
complaint as whether appellant was discriminated against when on April 27,
1997, he was detailed to the 75th Division, Houston. In dismissing the
complaint, the agency stated that appellant was notified of the detail
on April 27, 1997, and also on July 1, 1997, but failed to contact an
EEO Counselor until February 10, 1998.
The record contains an April 27, 1997 Memorandum placing appellant on
a 30-day detail effective July 1, 1997. Appellant acknowledged receipt
of the Memorandum on June 27, 1997. Appellant noted on the Memorandum
that he would comply with the detail but that he had a heart condition
and that he did not understand why he was being required to drive three
to four hours to comply with the detail. In a July 11, 1997 Applicant's
Statement of Disability, appellant stated that he was being detailed and
that the detail would place great stress on his heart. In a November
21, 1997 letter to the agency's Office of Special Counsel, appellant,
through counsel, appellant informed the agency that he was thereby giving
notice of intent to file suit in federal district court regarding the
detail and other matters. In a December 8, 1997 letter to appellant's
counsel from the agency's Fort McCoy Legal Office, the time limit for
EEO contact was mentioned. The letter also reflects that a copy was
sent to the agency's EEO Office. The Counselor's Report reveals that
appellant contacted the EEO office on February 23, 1998.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that an aggrieved
person initiate contact with an EEO Counselor within 45 days of the
date of the matter alleged to be discriminatory or, in the case of a
personnel action, within 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. �1614.604(c) provides that the time limits in
Part 1614 are subject to waiver, estoppel and equitable tolling.
Upon review, we find that appellant's EEO Counselor contact on February
23, 1998 was untimely.<1> Appellant does not argue that he was unaware
of the limitation period for timely contact. We find that appellant
should have had a reasonable suspicion of discrimination by June 27,
1997, when he received notice of the detail and questioned the amount of
time he would be required to drive in light of his alleged disability.
Appellant, therefore, should have made contact with an EEO Counselor
within 45 days of June 27, 1997. Appellant failed to do so and also
failed to provide justification sufficient to extend the time period.
Even if the Commission assumed that appellant's November 1997 letter
constituted Counselor contact, the November 1997 contact would be
likewise untimely. Accordingly, consistent with our discussion, the
agency's final decision 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. �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. 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:
June 10, 1999
DATE Carlton M. Hadden, Acting Director
1Although the final agency decision indicates that EEO contact was on
February 10, 1998, and on appeal the agency gives a date of February 8,
1998, the Counselor's Report reflects a contact date of February 23, 1998.