01a00192
03-20-2000
Earl G. Berger, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Earl G. Berger, )
Complainant, )
)
v. ) Appeal No. 01A00192
) Agency No. DOT-6-98-6046
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
____________________________________)
DECISION
Based on a review of the record, we find that the agency properly
dismissed complainant's complaint, pursuant to 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.107(a)(2)), for failure to contact an Equal Employment Opportunity
(EEO) counselor within the 45-day time limit.<1> Complainant alleged that
he was subjected to discrimination on the basis of physical disability
(Grand Mal seizure caused by medication) when he was forced to retire
on or about June 28, 1996, because his aviation medical certificate was
revoked and the agency allegedly failed to either restructure his job
or reassign him to another position not requiring such a certificate.
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 Ball v. United States Postal Service,
EEOC Request No. 05880247 (July 6, 1988). 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.
According to the EEO Counselor's Report in the instant case, complainant
initially contacted an EEO counselor on January 16, 1998, more than one
and one-half years following his retirement from the agency.
Complainant does not contend that he was unaware of the time limitation
for contacting an EEO Counselor. Instead, he argues that he did not
realize he could pursue the EEO complaint process until December 15,
1997, when he "learned that the [Federal Aviation Administration (FAA)]
does make accommodations for physical disabilities and could have done
so for me."<2> However, the Commission has held that the time limit for
contacting an EEO Counselor shall not be extended "simply on the grounds
that [complainant] did not know that disability in general or that [a
disability in particular] was covered under the Rehabilitation Act." Moore
v. Department of the Navy, EEOC Appeal No. 01952942 (March 28, 1996).
Complainant further asserts that he was misled by the Acting Human
Resources Manager (who at the time also served as the "Acting Handicap
Coordinator"), when she told him that a search had yielded no vacant
positions available at complainant's grade level or salary which did
not require a medical certificate. The Commission has held that agency
actions that mislead an individual concerning his EEO rights will toll the
limitations period. See Santos v. Department of the Navy, EEOC Request
No. 05960813 (June 12, 1997). However, individuals using the EEO
process must act with due diligence in the pursuit of their claims. See,
e.g., Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151 (1984)
(per curiam) ("one who fails to act diligently cannot invoke equitable
principles to excuse lack of diligence"). On the facts of this particular
case, complainant has not established that he was misled by any agency
official with respect to his EEO rights or the EEO process itself, and
therefore he has failed to present adequate justification for extending
the limitation period beyond forty-five days.
Accordingly, the agency's decision to dismiss appellant's complaint for
failure to initiate contact with an EEO Counselor in a timely fashion
was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
3/20/00
Date
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
___________________________
Equal Employment Assistant 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.
2 Specifically, complainant contends that following his retirement, he
worked as a contract instructor at the FAA academy and observed that
two employees with other physical disabilities had been accommodated
in various ways, causing him to believe that the agency had positions
available which did not require aviation medical certificates.