0120061726
02-06-2007
Donald L. West, Jr., Complainant, v. Alberto Gonzales, Attorney General, Department of Justice, Agency.
Donald L. West, Jr.,
Complainant,
v.
Alberto Gonzales,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01200617261
Hearing No. 340-2005-00499X
Agency No. P-2005-0039
DECISION
On January 8, 2006, complainant filed an appeal from the agency's December
6, 2005 final order concerning his equal employment opportunity (EEO)
complaint alleging 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The Commission accepts complainant's appeal.
During the period in question, complainant was employed as a GS-12 Human
Resources Manager at a California facility of the agency. On September
16, 2004, complainant initiated contact with an EEO Counselor alleging
that the agency discriminated against him on the bases of disability
(back injury, anxiety and depression) and age (over 40) when it failed
to select him for a GS-13 Human Resources Manager (HRM) position.
Subsequently, complainant filed a formal EEO complaint on the same
matter and added the alleged bases of race (Caucasian), sex (male),
and reprisal for prior EEO activity.
Complainant applied for the HRM position on August 29, 2003, and January
12, 2004, but, on January 6, 2004 and May 11, 2004, respectively, the
agency indicated that it decided not to fill the position at that time.
Complainant elaborated that he submitted "Outstanding" performance
evaluations with both applications and that a prior regional director
informed him that the agency would eventually promote him to the GS-13
position. Complainant stated, in June 2004, the agency filled the
vacant position by non-competitive reassignment of a HRM from another
agency facility. Complainant added that the selectee arrived at the
facility-at-issue on August 9, 2004.
At the conclusion of the investigation into his complaint, complainant
was provided with a copy of the report of investigation and notice of
his right to request a hearing before an EEOC Administrative Judge
(AJ). Complainant requested a hearing. At the hearing stage, the
agency filed a Motion to Dismiss pursuant to 29 C.F.R. � 1614.107(a)(2)
for untimely EEO contact. The AJ granted the agency's motion, finding
that complainant failed to provide justification to warrant extension
of the applicable time limits. The AJ found that, in June 2004,
complainant was aware that the agency did not select him for the GS-13
HRM position and chose selectee. However, complainant's initial EEO
counselor contact was not until September 16, 2004, beyond the 45-day
limitation period. Subsequently, on December 6, 2005, the agency issued
a final order adopting the AJ's dismissal for untimely EEO contact.
On appeal, complainant stated that he was informed of his non-selection
and the selection of selectee when he received a group email from the
facility's Associate Warden on August 12, 2004. Further, complainant
stated that he suspected discrimination initially but waited until he
accrued enough evidence to support his contentions before he initiated
EEO contact. In opposition to complainant's appeal, the agency provided
a Declaration under Penalty of Perjury that complainant was informed
in May or June 2004 that the agency selected another HRM for the GS-13
vacancy and that complainant, as a Human Resources Manager, should have
been knowledgeable of EEO policies. In addition, the agency provided
a schedule for refresher training conducted between January and March
2004, including EEO, and a participants' sign-in sheet that contains
complainant's name for said training.
In pertinent part, the EEOC regulation found at 29 C.F.R. � 1614.107(a)(2)
allows an agency to dismiss a complaint that fails to comply with
the applicable time limits contained in 29 C.F.R. � 1614.105.2 EEOC
Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of an EEO 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. Dep't 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.
After careful consideration of the evidence of record, we agree with the
AJ that the record establishes that complainant learned of the selection
decision at issue no later than June 2004 and, therefore, initiated
contact with an EEO counselor in an untimely manner and failed to provide
adequate justification to extend the time-frame. Based on the above,
the Commission AFFIRMS the agency's dismissal of complainant's complaint.
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
February 6, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
2 We note that 29 C.F.R. � 1614.109(b) allows an AJ to dismiss a complaint
upon an agency's motion to dismiss.
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0120051747
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120061726