Thomas A. Mitchell, Appellant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionSep 14, 1999
01985189 (E.E.O.C. Sep. 14, 1999)

01985189

09-14-1999

Thomas A. Mitchell, Appellant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.


Thomas A. Mitchell v. Department of the Treasury

01985189

September 14, 1999

Thomas A. Mitchell, )

Appellant, )

) Appeal No. 01985189

v. ) Agency No. 981175

)

Lawrence H. Summers, )

Secretary, )

Department of the Treasury, )

Agency. )

)

DECISION

INTRODUCTION

Appellant filed an appeal with this Commission from a final agency

decision (FAD) concerning 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. The FAD was dated May 21, 1998.

The appeal was postmarked on June 17, 1998. The timely appeal is,

therefore, accepted in accordance with EEOC Order No. 960.001, as

amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed appellant's

complaint for untimely EEO Counselor contact.

BACKGROUND

Appellant initially contacted an EEO Counselor on February 5, 1998.

He then filed a formal complaint on March 5, 1998 alleging discrimination

on the basis of sex (male) when:

(1) on March 23, 1995, April 18, 1995, and June 2, 22, and 27, 1995,

appellant's manager placed memoranda in his Employee Personnel Folder

documenting his communications skills;

(2) in a memorandum dated June 14, 1995, appellant was admonished for

being "stiff";

(3) during a November 14, 1995 meeting, appellant was advised that his

performance in workload management needed improvement;

(4) his manager made derogatory comments about him to other employees;

and,

(5) his manager stated, "I'm glad we've got someone like David who will

take the initiative to learn things on his own" when appellant informed

his manager that he was learning to use a mapping software.

In his formal complaint, appellant explained that the preceding list

merely exemplifies the hostile work environment that his supervisor

created.

By letter dated April 13, 1998, the agency requested clarification of

appellant's complaint to determine whether the complaint met timeliness

requirements. Appellant responded to the agency's request in a letter

dated April 27, 1998. In that letter, appellant explained that his

supervisor began to harass him in January 1995 and that the harassment

continued unabated until the present day. He gave additional dates of

harassment which were: January 1995, the week of May 1, 1995, July 14,

1995, July 24, 1995, September 13, 1996, and April 20, 1998. He said that

the harassment was so bad that he retained the services of an attorney in

May 1995. Appellant also stated that prior to contacting an attorney, he

asked his EEO office for help, but that he decided not to file a complaint

at the time because he could not determine whether the harassment was

occurring because of his gender or his age. Appellant goes on to state

that he was later able to identify his harassment as gender based.

Based on appellant's April 27, 1998 letter, the agency's FAD dismissed

the complaint for untimely EEO Counselor contact. This appeal followed.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved

person must initiate contact with an EEO Counselor within 45 days of

the date of the matter alleged to be discriminatory or within 45 days of

the effective date of the personnel action. The Commission has adopted

a "reasonable suspicion" standard (as opposed to a "supportive facts"

standard) for determining whether contact with an EEO Counselor is timely.

Ball v. U.S. Postal Service, EEOC Request No. 05880247 (July 6, 1988).

Under this standard, the regulatory limitations period "is not triggered

until complainant reasonably suspects discrimination, but before all the

facts that would support a charge of discrimination have become apparent."

Bracken v. U.S. Postal Service, EEOC Request No. 05900065 (March 29,

1990).

We agree with the agency that appellant's EEO Counselor contact was

untimely. Given that in 1995, appellant spoke to the EEO Office and

contacted a lawyer regarding the discrimination, we find it reasonable to

conclude that appellant reasonably suspected discrimination long before

he contacted an EEO Counselor on February 5, 1998.

CONCLUSION

Accordingly, the decision of the agency was proper and 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:

September 14, 1999

______________ __________________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations