01983238
03-01-1999
Thomas C. Doyle, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury Agency.
Thomas C. Doyle, )
Appellant, )
)
)
v. ) Appeal No. 01983238
) Agency No. 98-3079
)
Robert E. Rubin, )
Secretary, )
Department of the Treasury )
Agency. )
______________________________)
DECISION
Appellant filed an appeal with this Commission from a final agency
decision concerning 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. The agency issued a final decision on February
27, 1998.
The issue on appeal is whether the agency properly dismissed the
appellant's formal complaint for failure to initiate contact with an
EEO counselor in a timely fashion.
BACKGROUND
According to the Agency's records, the appellant initiated contact
with an EEO counselor on October 2, 1997. Informal efforts to resolve
the complaint were unsuccessful and the appellant then filed a formal
complaint on December 31, 1997.
The appellant alleged in his complaint that the Agency discriminated
against him on the basis of his sex when it suspended him from September
28, 1992 to October 7, 1992 after failing to report an incident of
employee misconduct. According to the appellant, the same information was
known to a female supervisor who had also failed to report the incident
but was not suspended or disciplined.
The agency sent the appellant a letter dated February 18, 1998 notifying
him that his complaint was untimely. The Agency requested additional
information as to why he had failed to contact an EEO counselor within
the 45 day time limit specified by the applicable regulations and whether
there was any good reason to extend the time limits.
The appellant responded by letter dated February 21, 1998 that he did
not suspect the Agency had discriminated against him until October 1997
when he learned that the female supervisor was no longer employed by
the Agency. Prior to that time, he alleged, he was aware that the female
supervisor had filed �numerous EEO complaints and lawsuits� and it was
�intimated to me that she would be suspended�. These facts, he asserted,
did not alert him to any discriminatory behavior. The appellant also
stated he was aware that the female supervisor had been placed on a
voluntary leave status in late 1992 and �as time went on,(one or two
years) I began to believe...that the female supervisor had not yet been
disciplined.� The appellant recalled that as circumstances began to
unfold between 1993 and 1997 surrounding the female employee's filing
lawsuits he began to form the belief that she would not be disciplined.
The agency issued its final decision on February 27, 1998 dismissing the
complaint on the basis that the appellant had failed to contact an EEO
counselor in a timely manner. The agency noted in its decision that the
appellant stated he was familiar with the time limit requirements for
filing an EEO complaint and had not described any circumstances which
prevented him from meeting the time limits.
The agency also based its decision on the fact that the appellant stated
he had begun to form a belief that the female supervisor would not be
disciplined some time in 1993 or 1994.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the agency's 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.Ball v. USPS, EEOC Request No. 05880247
(July 6, 1988). Thus the limitations period is not triggered until a
complainant reasonably suspects discrimination, but before all the facts
that support a charge of discrimination have become apparent. Bracken
v. U.S. Postal Service, EEOC Request No. 05900065 (March 29, 1990).
We cannot agree with the appellant that he did not have a reasonable
suspicion of potentially discriminatory conduct until he learned that
the female employee had left the agency in October 1997, five years after
his suspension occurred. The appellant cites to several facts available
to him which should have raised a suspicion of discrimination at a much
earlier date. First, the appellant states he was aware that the female
supervisor had been placed on a voluntary leave status in late 1992 and
had been transferred to another field office after the incident leading
to his own suspension. This should have immediately indicated to the
appellant that the female supervisor was being treated differently than
he was.
Secondly, the appellant reports that around the time the female supervisor
filed EEO complaints and lawsuits in 1993 and 1994, he was aware
that she still had not been disciplined. At this point in time it was
unreasonable for the appellant to wait any longer to file his complaint.
As the Commission has held, the appellant need not have all facts to
support a charge of discrimination, only a reasonable suspicion. Id.
The fact that the appellant was a former supervisor and was, by his own
admission, familiar with the EEO complaint process and its time limits,
supports the Agency's decision to dismiss the complaint. The appellant's
supervisory experience should have heightened his awareness of the
time limits within which he needed to act, and also of the time period
within which some form of discipline would have been taken against the
female employee.
Based on a review of the record, we find that the agency properly
dismissed appellant's complaint, pursuant to EEOC Regulation 29
C.F.R. �1614.107(b), for failure to contact an EEO counselor in a timely
manner. Appellant has not provided justification sufficient to extend
the time limit. Accordingly, the agency's final decision dismissing
appellant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
March 1, 1999 ____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations