01A42523_r
08-30-2004
Virgil E. Coop, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Virgil E. Coop v. Department of the Army
01A42523
August 30, 2004
.
Virgil E. Coop,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A42523
Agency No. ARLEWIS04JAN0067
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision, dated February 20, 2004, pertaining to his complaint
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq.; Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq.; and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
In January 2004, complainant contacted an agency EEO office claiming
that he was discriminated against when he was not selected for a 2003
summer hire position in the Building and Grounds Section, Directorate
of Public Works.<1> Informal efforts to resolve complainant's concerns
were unsuccessful. Subsequently, complainant filed a formal complaint
based on race, national origin, disability, age and in reprisal for
prior protected activity.
The agency issued a final decision on February 20, 2004, dismissing
the instant complaint for untimely EEO Counselor contact. The agency
determined that complainant knew of his non-selection before May 14, 2003
and, although he had previously utilized the EEO process, chose to address
the non-selection through the Civilian Personnel Advisory Center, the
union, congressional inquiries, and the Merit Systems Protection Board.
Further, the agency noted that complainant went to the EEO office, on
September 8, 2003, and spoke with the Complaint Manager who reminded
him of the forty-five day time limitation. According to the agency,
complainant did not seek counseling until January 27, 2004.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
In the instant case, complainant claims he was discriminated against when
he was not hired for summer 2003. On appeal, complainant states that on
April 28, 2003, a union representative told him that he was not selected
due to the budget. Additionally, complainant has provided correspondence
from June 2003, to his U.S. Senators, addressing their inquiries into
his non-selections. Therefore, we find that complainant suspected
discrimination more than six months before his January 2004 contact.
Complainant has not provided sufficient justification for extending or
tolling the time limit for contacting an EEO Counselor.
Accordingly, the agency's decision dismissing the complaint was proper
and is hereby 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
August 30, 2004
__________________
Date
1The final agency decision cites January 27,
2004 ( a letter requesting EEO counseling), as complainant's contact.
The EEO Counselor's Report states that initial contact was made on January
30, 2004. Additionally, the final agency decision refers to a January
13, 2004 letter, wherein complainant states he wants to file a formal
complaint, which could also be construed as an EEO Counselor contact.
While the Commission notes the disparity in dates regarding when
precisely in January 2004, the initial EEO contact was made, it does
not affect our disposition of this case.