01985721
02-17-2000
John Leins, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Army & Air Force Exchange Service), Agency.
John Leins, )
Complainant, )
)
v. ) Appeal No. 01985721
William S. Cohen, ) Agency No. 98011
Secretary, )
Department of Defense, )
(Army & Air Force Exchange Service), )
Agency. )
____________________________________)
DECISION
On July 1, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on June 3, 1998,
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. and the Equal Pay Act of 1963 ("EPA"), as amended,
29 U.S.C. �206(d) et seq. <1> In his complaint, complainant alleged
that he was subjected to discrimination on the basis of sex (male) when:
In April 1993, approximately one and a half years after being transferred
to an HPP 3, Store Associate position, complainant learned that other
female employees in the same position were being paid as HPP 5, Store
Associates; and
Complainant requested an upgrade to his position he was told that he
would be required to complete a training package which other female
employees were not required to complete in order to advance to the HPP
5 position.
The agency dismissed complainant's complaint on the grounds of untimely
EEO Counselor contact and for failure to cooperate. Specifically,
the agency claimed that since complainant discovered the disparity in
grades/pay in 1993, his September 10, 1997 EEO Counselor contact was
untimely. In addition, the agency claimed that by letter dated December
9, 1997, signed for on December 12, 1997, complainant was asked to explain
why he did not contact an EEO Counselor within forty-five days of the time
he discovered the disparity in grades/pay and to provide the date that
he was told that he would be required to complete the training package.
The agency further stated that it issued a Notice of Intent to Dismiss
Discrimination Complaint dated January 9, 1998, signed for on January
14, 1998, which informed complainant of the agency's intent to dismiss
his complaint if complainant did not respond to the request within
fifteen calendar days from receipt of the letter. The agency dismissed
complainant's complaint when he failed to respond to the agency's letter.
In his formal complaint, complainant stated that after discovering the
differences in grades/pay in 1993, he questioned his supervisor about
the disparity. Complainant also stated that he spoke to his union
representative, the Human Resources Manager and his other supervisor about
the difference in pay between complainant and the women in his position.
Complainant stated that he was then told that he needed to complete
training before receiving a possible upgrade. According to complainant,
he completed the training and when he saw no further attempts by the
agency to resolve the situation, he sought EEO Counseling.
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, the record reveals that complainant learned of the
disparity in grades/pay in April 1993, approximately a year and a half
after his transfer. The record also reveals that complainant spoke to
two supervisors, the Manager of Human Resources, and his union regarding
the disparity in grades/pay between himself and other female employees
prior to contacting an EEO Counselor. Complainant did not contact an
EEO Counselor until September 10, 1997, nearly three and a half years
after learning of the alleged discrimination. Therefore, the Commission
find that complainant failed to timely contact an EEO Counselor.
Accordingly, the agency properly dismissed complainant's complaint and
the agency decision is hereby 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:
February 17, 2000
____________________________
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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant1On 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.