01996181
07-20-2000
Willie E. Graves, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Willie E. Graves v. Department of the Navy
01996181
July 20, 2000
.
Willie E. Graves,
Complainant,
v.
Richard J. Danzig,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01996181
Agency No. 9962793002
DECISION
On August 6, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD), pertaining to 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.<1> The
Commission accepts this appeal in accordance with 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
On February 5, 1999, complainant contacted the EEO office regarding
claims of discrimination based on race and reprisal. Informal efforts
to resolve complainant's concerns were unsuccessful. On March 26, 1999,
complainant filed a formal complaint.
The FAD framed complainant's complaint as follows: on November 30, 1998,
complainant was subjected to racial reprisal and non-support when the
Assurance Engineering/Technical Data Branch was reorganized from his
division to the direct supervision of the Deputy Department Head. The
agency indicates that complainant alleges that his recommendations for
changes were not accepted and the branch move was implemented instead.
The agency issued a FAD dated July 23, 1999, dismissing complainant's
complaint for untimely EEO Counselor contact and for failure to state a
claim. Specifically, the agency indicated that complainant contacted the
EEO Counselor on February 5, 1999, sixty-seven days after the alleged
incident, on November 30, 1998, and beyond the forty-five day time
limitation.
On appeal, complainant claims that the alleged incident date is actually
December 30, 1998, when he became aware that the agency implements
racially motivated double standards and personnel policies in regards to
white and black supervisor and employee relationships, thereby rendering
timely his initial EEO Counselor contact of February 5, 1999.
Volume 64 Fed. Reg. 37,644, 37656 (1999) (to be codified and hereinafter
referred to as 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 sent an electronic message to a superior
on November 30, 1998, stating, "The purpose of this memorandum is to
report actions I consider to be a serious case of racial reprisal and
nonsupport." The message addressed a particular incident in detail
that gave complainant reason to suspect that the reorganization was a
result of reprisal against complainant. Given these circumstances, we are
unpersuaded by complainant's assertion on appeal that he only developed a
reasonable suspicion of unlawful employment discrimination on December 22,
1998. Complainant's initial EEO contact on February 5, 1999, is more than
forty-five days after complainant suspected discrimination, as reflected
by his November 30, 1998 electronic message discussed above. On appeal,
no persuasive arguments or evidence have been presented to warrant an
extension of the time limit for initiating EEO contact. Accordingly, the
agency's final decision dismissing complainant's complaint for untimely
EEO Counselor contact is AFFIRMED.
Because of our disposition, we do not consider whether the complaint
was properly dismissed for failure to state a claim.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified
and hereinafter referred to as 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
July 20, 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.