William H. Chalmers, Complainant,v.F. Whitten Peters, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionSep 27, 2000
01a01992 (E.E.O.C. Sep. 27, 2000)

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.