0120114036
11-06-2012
Willie J. Lenard, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.
Willie J. Lenard,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 0120114036
Hearing No. 430-2011-00125X
Agency No. FS-2010-00416
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final order dated August 1, 2011, implementing an EEOC Administrative Judge'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.
BACKGROUND
On June 21, 2009, Complainant was hired as a Supervisory Work Program Officer, GS-301-11 at the Agency's Schenck Job Corps Center in Pisgah Forest, North Carolina, subject to a one year probationary period.
On February 24, 2010, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. Subsequently, Complainant filed the instant formal complaint on June 14, 2010. Therein, Complainant alleged that the Agency subjected him to discrimination on the basis of race and political affiliation when:
on January 8, 2010, his employment was terminated.
Following the investigation into his formal complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a motion for a summary judgment.1 On April 25, 2011, the AJ issued a decision by summary judgment in favor of the Agency. The AJ dismissed Complainant's formal complaint on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). Specifically, the AJ determined that Complainant did not initiate EEO Counselor contact until February 24, 2010, approximately 47 days after he was issued a Notice of Termination on January 8, 2010. The AJ further noted that in the Notice of Termination, Complainant was placed on notice of the 45-day limitation period to initiate EEO Counselor contact. Finally, the AJ found that Complainant did not set forth persuasive reasons for tolling the time limitation period.
The record contains a copy of the January 8, 2010 Notice of Termination. Therein, the Center Director informed Complainant that if he feels he was discriminated against, Complainant was required "to contact your EEO Counselor within 45 days of your reception of this letter to either amend a current complaint or to initiate a new complaint."
The Agency fully implemented the AJ's decision in its August 1, 2011 final order. The instant appeal followed.
ANALYSIS AND FINDINGS
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 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.
The AJ properly dismissed the formal complaint on the grounds of untimely EEO Counselor contact. The alleged discriminatory occurred on January 8, 2010. However, Complainant did not initiate contact with an EEO Counselor until February 24, 2010, beyond the forty-five day limitation period.
On appeal, Complainant argues that his February 24, 2010 EEO contact was timely. Specifically, Complainant states "I am within the specified time limit for making contact with the EEO Counselor. It is reasonable to ask that my complaint be heard (see below calculations). For me, the emotional tragedy related to being removed from my job, because of no fault of my own, was one of the most horrendous periods in my life. Because of this request and my circumstances, please allow my complaint to go forward." Complainant further states that from January 8, 2010 to February 7, 2010, there are 30 days, and from February 8, 2010 to February 24, 2010, there are 15 days which comes to a total of 45 days which makes his February 24, 2010 EEO contact timely.
However, we are not persuaded that this is sufficient justification for Complainant's untimely EEO contact. In particular, we note that Complainant's arithmetical computations for the forty-five day limitation period are not accurate, and that Complainant's initial EEO contact was more than forty-five days after the alleged discriminatory event. Moreover, we determine that the other reasons Complainant has advanced on appeal do not justify a delay in contacting an EEO Counselor.
The Agency's final order implementing the AJ's decision dismissing Complainant's formal complaint on the grounds of untimely EEO Counselor contact is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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, DC 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 (S0610)
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 (Z0610)
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
November 6, 2012
__________________
Date
1 The record does not contain a copy of the Agency's motion.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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