01A13211_r
03-08-2002
Alex Bowen, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Alex Bowen v. Department of the Treasury
01A13211
March 8, 2002
.
Alex Bowen,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A13211
Agency No. 01-4120
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated February 28, 2001, 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
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. In his complaint, complainant alleged that he
was subjected to discrimination on the bases of race (Black), color
(brown), sex (male), national origin (African-American), age, and in
reprisal for prior EEO activity when:
On June 23, 1999, complainant was singled out for random drug testing;
Complainant was placed on administrative leave from June 30, 1999, to
about June 26, 2000, pending the results of an Internal Affairs (IA)
investigation regarding his positive drug test; and
On July 6, 1999, complainant was interviewed by IA regarding 127 pounds
of missing marijuana.
The agency dismissed complainant's complaint pursuant to the
regulation set forth at 29 C.F.R. � 1614.107(a)(2), untimely EEO
Counselor contact. The agency notified complainant in a February 1,
2001 letter that his EEO Counselor contact appeared to be untimely.
Complainant responded by stating that since he never participated in
the EEO complaint process before, he was not aware of the relevant
time limits. Further, complainant stated that even if he had been
aware of the time requirements, his �tortured mental and emotional state
of mind� prevented timely counselor contact. Complainant stated that
he experienced a series of deaths of close family and friends in the
summer of 2000, and was unable to pull himself together to come to the
realization that he had suffered discrimination. Complainant claimed
that he sought counseling within forty-five (45) days of becoming aware
that discrimination occurred, which he states was on September 27, 2000.
The agency notes that the only incident occurring on September 27,
2000, was complainant's designation of his EEO Representative. The
agency found that complainant should have had a reasonable suspicion
of discrimination at the time the alleged events occurred in 1999.
In addition, the agency determined that complainant failed to show that
he was so incapacitated that he was unable to timely contact a counselor.
Thus, the agency concluded that complainant failed to present sufficient
justification for extension of the relevant time frame and found that
his October 19, 2000 counselor contact was untimely. Alternatively,
the agency dismissed the basis of retaliation pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
The agency stated that complainant has not previously participated
in the EEO complaint process. The agency also dismissed issue (3) of
complainant's complaint for failure to state a claim. Specifically,
the agency concluded that complainant failed to show that he suffered
a harm to his employment as a result of the IA investigation.
On appeal, complainant states that his mental condition after his
nervous breakdown in approximately July 1999 was so pervasive that
he could not be classified as a �reasonably prudent person� able to
discern the events surrounding him at the time. Complainant states that
he may have noted certain improper actions taken by the agency against
him but he was �powerless� to counter their attacks without assistance
from professionally trained medical staff - both psychologists and
psychiatrists. Complainant attaches a letter dated August 12, 1999,
from a doctor who treated him at the Mental Health Center. The doctor
states that complainant has been in a day treatment program since July
16, 1999. The doctor states that complainant meets the criteria for major
depression, single episode and is being treated with the antidepressant
Zoloft and with Trazodone for sleep. The letter states that complainant
is participating in groups, psychotherapy, and the therapeutic mileau
and will require ongoing medication management upon discharge.
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.
The Commission has held, in cases involving physical or mental health
difficulties, that an extension is warranted only where an individual
is so incapacitated by his condition that he is unable to meet the
regulatory time limits. See Davis v. United States Postal Service,
EEOC Request No. 05980475 (Aug. 6, 1998). Claims of incapacity must be
supported by medical evidence of incapacity. See Crear v. United States
Postal Service, EEOC Request No. 05920700 (Oct. 29, 1992) (complaints
of decreased mental and physical capacity, without medical evidence
of incapacity, does not warrant extension of time limits); cf. Maddux
v. United States Postal Service, EEOC Request No. 05980302 (Aug. 5, 1999)
(psychiatrist's statement that complainant's mental condition rendered
her unable to comprehend her legal rights and responsibilities found
sufficient to justify extension of time limit); Sohal v. United States
Postal Service, EEOC Request No. 05970461 (Apr. 24, 1997) (psychiatrist's
statement that complainant's severe depression and anxiety rendered him
unable to make decisions found sufficient to justify extension). Evidence
that a complainant has sought treatment does not, without evidence
of incapacity, justify an extension of time. See Galbreath v. Navy,
EEOC Request No. 05980927 (Nov. 4, 1999) (evidence that complainant
was under great mental stress, and received an evaluation/treatment,
did not render the complainant incapacitated). In the present case,
we find that there is no evidence that complainant was incapacitated
during the entire period in question so as to warrant an extension of the
applicable limitation period for approximately fourteen months. Thus, we
find that complainant's October 19, 2000 counselor contact was untimely.
Accordingly, the agency's decision to dismiss complainant's complaint
is 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
March 8, 2002
__________________
Date