01A23113_r
08-13-2002
Samuel Smith, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Samuel Smith v. Department of the Air Force
01A23113
August 13, 2002
.
Samuel Smith,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A23113
Agency No. MG0J02005
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated April 5, 2002, 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.
The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
On January 24, 2002, complainant contacted the EEO office claiming that
he was discriminated against based on race and reprisal. Informal efforts
to resolve complainant's concerns were unsuccessful. Subsequently, on
February 19, 2002, complainant filed a formal complaint. The agency,
in its decision, framed the claims as follows:
Complainant was denied performance and associated awards bonuses and
potential promotion opportunities when on July 12, 2001, the Chief
Educational Software Services, did not upgrade two of his performance
appraisal factors from grade eight to nine.
On April 5, 2002, the agency issued a decision dismissing the complaint
for untimely EEO counselor contact. The agency determined that
complainant's January 24, 2002 contact was well beyond the forty-five
day time limitation.
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.
A review of the record shows that complainant contacted the EEO office
on January 24, 2002, regarding a decision not to upgrade two of his
performance appraisal factors which occurred on July 12, 2001. We note
that complainant explained to the EEO Counselor that his contact was
untimely because he was trying to resolve the issue through the negotiated
grievance procedure. The Commission has consistently held that the use
of the negotiated grievance procedure does not toll the time limit for
contacting an EEO Counselor. See Schermerhorn v. United States Postal
Service, EEOC Request No. 05940729 (February 10, 1995). Therefore,
we find that the agency properly dismissed the complaint pursuant to 29
C.F.R. � 1614.107 (a)(1). Accordingly, the agency's decision to dismiss
the complaint was proper and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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
August 13, 2002
__________________
Date