01a44555
10-20-2004
Tracy Pope, Complainant, v. Thomas J. Ridge, Secretary, Department of Homeland Security, Agency.
Tracy Pope v. Department of Homeland Security
01A44555
October 25, 2004
.
Tracy Pope,
Complainant,
v.
Thomas J. Ridge,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A44555
Agency Nos. 01-4132, 03-4109
Hearing No. 380-2002-08009X
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO Counselor contact. In his complaint, complainant alleged that he
was subjected to discrimination on the bases of race (African-American)
and disability when the agency failed to promote him to the position of
Customs Inspector, GS-1890-9, in July 1999 and thereafter.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
dismissing complainant's complaint for untimely EEO counselor contact.
The AJ found that complainant failed to apply for a competitive
promotion in September of 2000, but that the denial of his request
for a non-competitive promotion constituted a formal personnel action
which necessitated his contact with an EEO counselor within 45 days. The
agency's final order implemented the AJ's decision.
In his affidavit, complainant contended that he should have been promoted
after he successfully completed Glynco Academy training in July of
1999. He asserted that he spoke with two Supervisory Customs Inspectors
in September of 2000, stating that he had completed the requirements
to be promoted to a Customs Inspector, GS-9, and wanted to be promoted.
One of the Supervisory Customs Inspectors (S1), he stated, talked with
the Area Port Director who informed S1 that there were no automatic
promotions to GS-9. Further, complainant stated that S1 told him that
the Area Port Director said that there were no openings, she had no
authority to non-competitively promote complainant and there was no money
to create an opening for his promotion. Complainant stated that he did
not believe the Area Port Director's reasons for his not being promoted.
Complainant asserted that there were others outside of his protected
classes in his circumstances who had been promoted.
The EEO counselor's report stated that complainant met with a union
representative and the Area
Port Director on December 12, 2000. The Area Director told him that
there were no provisions and no funds at the Seattle port that would
allow him to be promoted to the GS-9 level. The EEO report stated that,
after the meeting, complainant, "surmised that he was the victim of racial
discrimination because he wasn't promoted to a GS-09, after completing
his training at the academy."
The Area Port Director stated in her affidavit that she had been in her
position since July 2000, and had made no selections for promotion of
any Customs Inspectors.
EEOC regulations state that an aggrieved individual must contact an EEO
counselor within 45 days of the alleged discriminatory occurrence. 29
C.F.R. � 1614.105(a)(1). 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
Howard v. Department of the Navy, EEOC Request No. 05970852 (February
11, 1999). Thus, the time limitation is not triggered until a complainant
reasonably suspects discrimination, but before all the facts that support
a charge of discrimination have become apparent. This time limit may
be extended, however, if the individual was unaware of the time limits,
if he did not know or could not reasonably have known that discrimination
had occurred, if he was prevented from timely contacting a counselor by
circumstances beyond his control, or for any other reasons considered
sufficient by the Commission. 29 C.F.R. � 1614.105(a)(2). In addition,
the 45-day time limit is subject to waiver, estoppel, and equitable
tolling. 29 C.F.R. � 1614.604(c). If complainant fails to contact a
counselor within the 45-day time limit, and does not present arguments
or evidence that would support an extension of this time limit, then
the complaint may be dismissed pursuant to 29 C.F.R. � 1614.107(a)(2).
Moreover, the Commission's regulations confer upon the AJ the authority
to dismiss complaints pursuant to 29 C.F.R. � 1614.107(a), either on
their own initiative or upon an agency's motion to dismiss a complaint.
29 C.F.R. � 1614.109(b).
We agree with the AJ that alleged discriminatory event occurred in
September 2000, and complainant did not initiate contact with an EEO
Counselor until December 21, 2000, which is beyond the forty-five (45) day
limitation period. The information complainant received in the meeting
with the Area Port Director on December 12, 2000, was the same information
he had received from her through SI in September of 2000, specifically,
her disclosure that she was unable to promote him non-competitively.
In his affidavit, he cited the information he received from S1 led him
to believe he was discriminated against.
On appeal, complainant does not address the issue of the timeliness of his
EEO counseling contact. Complainant has presented no persuasive arguments
or evidence warranting an extension of the time limit for initiating EEO
counseling contact. Accordingly, we find that complainant had, or should
have had, a reasonable suspicion of discrimination in September 2000,
well prior to his December 21, 2000, EEO Counselor contact. Accordingly,
the agency's final order 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
October 20, 2004
__________________
Date