Willie E. Graves, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionJul 20, 2000
01996181 (E.E.O.C. Jul. 20, 2000)

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.