01a01992
09-27-2000
William H. Chalmers, Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.
William H. Chalmers v. Department of the Air Force
01A01992
September 27, 2000
.
William H. Chalmers,
Complainant,
v.
F. Whitten Peters,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A01992
Agency No.AL900000234
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated November 24, 1999, dismissing 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq.<1> In his complaint, complainant alleged that he was subjected
to discrimination on the bases of age (48) and sex (male) when:
Complainant was not referred on a promotion certificate by the Financial
Management Career Program (FMCP) at Randolph AFB, Texas on or about 11
December 1998, and
Management officials at Hanscom AFB, Massachusetts subjected complainant
to an allegedly sham interview process on 31 March 1999.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor
contact. Specifically, the agency stated that complainant did not contact
an EEO Counselor with regard to claims (1) and (2) until September 10,
1999, which was beyond the applicable forty-five (45) day limitations
period for timely counselor contact. The agency noted that both the
non-referral matter and the alleged sham interview were first discussed
on June 7, 1999, during an initial counselor contact for a separate
complaint, but the agency claimed that at the time, complainant stated
that these issues were not part of that complaint but rather background
information. The agency noted, however, that even if June 7, 1999, was
used as the date of complainant's initial counselor contact, the contact
would still be untimely since it occurred more than forty-five (45) days
from December 11, 1998, and March 31, 1999. In addition, the agency
stated that complainant first attempted to raise the non-referral claim
when he filed his formal complaint on July 31, 1999, for his previous
EEO Complaint (Agency Case No. 7W1M99007). In its previous decision,
the agency dismissed the non-referral claim for not being brought to the
attention of an EEO Counselor. The agency noted that complainant chose
to initiate a new informal complaint rather than appeal the dismissal
of the non-referral.
On appeal, complainant alleged a continuing violation of age and sex
discrimination. Complainant stated that he put the EEO Counselor on
notice that other incidents of discrimination existed and that the agency
ignored this continuing pattern of non-selection.
In complainant's formal complaint in Agency Case No. 7W1M99007,
complainant alleged that: (1) the Behavior Inventory (BI) instrument use
in the personal selection process at Hanscom AFB, MA is flawed in that the
BI scores indicate a pattern of discrimination by age and gender and (2)
he was deliberately omitted from a certificate of eligible candidates
by HQ AFPC/DPKCA and others on or about December 11, 1998, and that
subsequent to raising the issue, complainant has been subjected to other
discriminatory actions, denying him the opportunity for advancement.
The agency issued a final decision on August 19, 1999, in which it
accepted claim (1) for investigation and dismissed claim (2) on the
grounds that complainant did not bring this matter to the attention of
an EEO Counselor. The decision noted that complainant raised claim (2)
during the informal complaint process but stated that complainant raised
this issue as background information only and claimed that he was not
counseled on this matter. The decision stated that claim (2) could be
raised in the informal counseling process and if not settled, complainant
would have the right to file a formal complaint on the issue.
In his formal complaint in the present case, complainant raised the
following issues: (1) his non- referral on a promotion certificate by
the Financial Management Career Program (FMCP) at Randolph AFB, Texas on
or about 11 December 1998, and (2) Management officials at Hanscom AFB
subjected complainant to an allegedly sham interview process on 31 March
1999. In his formal complaint, complainant states that this complaint is
a second attempt to file a complete formal complaint against the agency.
Complainant states that the incidents raised in his previous complaint
and claims (1) and (2) of the present complaint are part of the same
complaint.
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 present case, we find that the agency properly dismissed
complainant's complaint for untimely EEO Counselor contact. We find
that complainant's counselor contact on September 10, 1999, was beyond
the applicable forty-five (45) day limitations period for both the
December 11, 1998 and March 31, 1999 alleged incidents of discrimination.
Furthermore, we note that even if June 7, 1999, the date complainant
initiated counselor contact in Agency Case No. 7W1M99007, is used as the
date of his initial counselor contact in the present case, complainant
still failed to timely contact an EEO Counselor with regard to claims (1)
and (2). Finally, the claims were not timely raised under the continuing
violation theory because none of the claims in the instant complaint
occurred within 45 days of the earliest possible counselor contact date,
June 7, 1999.
Accordingly, the agency's decision to dismiss complainant's complaint
was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0800)
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
September 27, 2000
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.