01986520_r
10-21-1999
Terry G. Provost, )
Appellant, )
)
v. ) Appeal No. 01986520
) Agency No. 98(58)R
)
Bill Richardson, )
Secretary, )
Department of Energy, )
Agency. )
______________________________)
DECISION
On August 27, 1998, appellant filed a timely appeal of a final agency
decision, which was dated July 23, 1998, dismissing two allegations in
his complaint, pursuant to 29 C.F.R. �1614.107(b), due to untimely EEO
Counselor contact.<1>
In its final decision, the agency identified the allegations of
appellant's March 9, 1998 complaint as whether appellant was discriminated
against based on sex (male) and in reprisal for prior EEO activity when:
(1) on or about October 2, 1997, his supervisor revoked her approval of
appellant's leave, after the fact, resulting in him being charged with
leave without pay; (2) during October and November of 1997, the supervisor
harassed him in both private counseling sessions regarding use of the
sign-in/sign-out board, personal log keeping, and personal interaction
skills, and in staff meetings by singling him out and making defamatory
comments regarding his character; (3) on June 25, 1997, during �Bring
Your Children to Work Day,� the supervisor made inappropriate remarks
regarding his child's looks and suggested she would like to take his
child home and change the child's name; and (4) in 1996, the supervisor
verbally attacked him for his efforts to resolve a disposal path question
with Chem Nuclear while acting during her absence. The agency accepted
allegations (1) and (2) and dismissed allegations (3) and (4) due to
untimely EEO Counselor contact. The agency stated that appellant's EEO
Counselor contact on October 9, 1997, with regard to allegations (3)
and (4), was beyond the 45-day time limit set by the regulations.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of the EEO Counselor within
45 days of the alleged discriminatory event, or the effective date of
an alleged discriminatory personnel action.
The Commission has adopted a �reasonable suspicion� standard (as opposed
to a �supportive facts� standard) to determine when the limitation period
is triggered under the EEOC Regulations. See 29 C.F.R. �1614.105(a)(2);
Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6,
1988). Thus, the limitations period is not triggered until a complainant
should reasonably suspect discrimination, but before all the facts that
would support a charge of discrimination have become apparent.
Allegations (3) and (4) involved incidents which occurred on June
25, 1997, and in 1996, respectively. In the EEO Counselor's Report,
appellant indicated that in 1994, when he was assigned to his supervisor,
a responsible official, he informed her that he had previously filed an
EEO complaint against his prior supervisor. Appellant stated that since
that time, he noticed a change in the supervisor's attitude and had been
subjected to discrimination and harassment. Thus, we find that appellant
had or reasonably should have had a suspicion of discrimination at the
time of the alleged incidents on or prior to June 25, 1997. Thus,
we find that appellant's October 9, 1997 EEO Counselor contact with
regard to allegations (3) and (4) was beyond the 45-day time limit set
by the regulations. On appeal, appellant fails to present adequate
justification to warrant an extension of the applicable time limit
for contacting an EEO Counselor pursuant to 29 C.F.R. �1614.105(a)(2).
Accordingly, the agency's final decision is hereby 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:
October 21, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1The agency was unable to supply a copy of a certified mail return
receipt or any other material capable of establishing the date appellant
received the agency's final decision. Accordingly, since the agency
failed to fulfill its obligation to transmit its final decision by a
method enabling the agency to show the date of receipt, the Commission
presumes that appellant's appeal was filed within thirty (30) days of
receipt of the agency's final decision. See, 29 C.F.R. �1614.402.