0120083756
12-24-2008
James L. Cook, Jr., Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
James L. Cook, Jr.,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120083756
Agency No. ARDRUM08MAY02098
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision 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 Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The EEO Counselor's report reflects that on May 19, 2008,
complainant sought EEO counseling regarding claims of discrimination.
Informal efforts to resolve complainant's concerns were unsuccessful.
Subsequently, on June 23, 2008, complainant filed a formal complaint
claiming that he was discriminated against on the bases of race (Black)
and disability (Nonparalytic Orthopedic Impairments) when, on March 29,
2008, he was wrongfully terminated from his position of Range Controller,
GS-0303-06.
On July 1, 2008, the agency issued a final decision dismissing the
complaint for untimely EEO Counselor contact. The agency found that
the alleged discriminatory event occurred on March 29, 2008, but that
complainant did not initiate contact with an EEO Counselor until May 19,
2008, which was beyond the forty-five day limitation period. The agency
further noted that complainant contacted an EEO Specialist on March 21,
2008, but indicated to the EEO Specialist that he did not want to initiate
the EEO process. Specifically, the agency indicated that when the EEO
Specialist asked complainant if he was initiating the EEO counseling
process, complainant replied: "No - I'm just trying to find out what
I have to do to get the bar lifted so that I may come back on base."
The agency further stated that the EEO Specialist advised complainant
of the EEO process, including the 45-date time limit, and complainant
responded, "No - I do not want to do this-I just want to be able to
get back to work." The agency further noted that on March 29, 2008,
complainant filed an appeal with the Merit Systems Protection Board
(MSPB) regarding his termination.
On appeal, complainant argues that he timely initiated EEO counseling
when on March 21, 2008, when he called the EEO office regarding his
termination.
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 she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission. 29 C.F.R. � 1614.105(a)(2).
The Commission has held that in order to establish EEO Counselor contact,
an individual must contact an agency official logically connected
to the EEO process and exhibit an intent to begin the EEO process.
See Allen v. United States Postal Service, EEOC Request No. 05950933
(July 9, 1996). EEO Counselor contact, for purposes of tolling the time
limit, requires at a minimum that the complainant intends to pursue EEO
counseling when she initiates EEO contact. See Snyder v. Department
of Defense, EEOC Request No. 05901061 (November 1, 1990); Menard
v. Department of the Navy, EEOC Appeal No. 01990626 (January 5, 2001),
request for reconsideration denied, EEOC Request No. 05A10279 (May 9,
2001).
We find that complainant failed to exhibit the requisite intent to
initiate EEO counseling prior to May 19, 2008. The record contains
an affidavit from the EEO Specialist stating that while complainant
contacted him on March 21, 2008 to report that he had been terminated
from his position and was not allowed to re-enter the base, complainant
indicated that he did not want to initiate EEO counseling at that time.
The EEO Specialist also attests that he did not receive any other
communication from complainant until May 19, 2008, when complainant
called to indicate that he was upset because he had not received an
answer to his request to be allowed to re-enter the base, and that
he wanted to send a statement by fax in reference to his termination.
The EEO Specialist stated that after reminding complainant of the 45-day
time limit, complainant acknowledged that he knew he was past the 45-days
time limit to initiate the EEO counseling process, but still wanted to fax
the statement. In his statement, complainant alleged for the first time
that he was discriminated against regarding his termination. Therefore,
we find that complainant initially contacted a counselor on May 19, 2008.
Further, the record in this case contains the EEO Counselor's report
wherein it indicates that when requested to provide an explanation
for not initiating his EEO counseling until May 19, 2008, complainant
states that he initiated EEO Counselor contact only after his efforts
at resolution through management and the MSPB appeal process failed.
Complainant's reliance on management and the MSPB process to resolve his
claims does not excuse an untimely EEO Counselor contact.1 The Commission
has consistently held that the utilization of agency procedures, union
grievances, and other remedial processes does not toll the time limit for
contacting an EEO Counselor. See Ellis v. United States Postal Service,
EEOC Appeal No. 01992093 (November 29, 2000). Therefore, we find that
complainant failed to provide sufficient justification for waiving or
tolling the time limitation.
Accordingly, the agency's decision dismissing the complaint for untimely
EEO counselor contact is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 77960,
Washington, D.C. 20013. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
December 24, 2008
Date
1 We also take notice that in a letter dated July 29, 2008, complainant's
wife acknowledged that complainant's complaint was dismissed "due to the
fact that we were outside our 45 day window because we were waiting on
the MSPB board [sic] to respond."
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0120083756
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013
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0120083756