Duane J. Grapperhaus, Complainant,v.Elaine Chao, Secretary, Department of Labor, Agency.

Equal Employment Opportunity CommissionDec 20, 2007
0120073640 (E.E.O.C. Dec. 20, 2007)

0120073640

12-20-2007

Duane J. Grapperhaus, Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency.


Duane J. Grapperhaus,

Complainant,

v.

Elaine Chao,

Secretary,

Department of Labor,

Agency.

Appeal No. 0120073640

Agency No. 0705042

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated July 19, 2007, dismissing his complaint of unlawful

employment discrimination in violation of Title VII of the Civil Rights

Act of 1964 (Title VII), as amended. Upon review, the Commission

finds that complainant's complaint was properly dismissed pursuant to

29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. In his

complaint, complainant alleged that he was subjected to discrimination

on the bases of race (Caucasian), sex (male), color (White), and age

(D.O.B. 12/21/52) when on September 5, 2006, he was not selected for the

position of Supervisory Equal Opportunity Specialist/District Director

pursuant to Vacancy Announcement No. MS-CKC-OF-06-140.

The record discloses that the alleged discriminatory event occurred

on September 5, 2006, but complainant did not initiate contact with an

EEO Counselor until November 30, 2006, which is beyond the forty-five

(45) day limitation period. 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 agency has provided the Commission with copies of EEO posters on

display at complainant's worksite which indicate the relevant time limits

for EEO contact. In addition, the record contains an affidavit from an

agency official attesting to the fact that an EEO poster is on display at

complainant's worksite which references EEO counselor contact information.

Complainant admits that he has seen EEO posters on display but alleges

that he failed to notice anything regarding the 45-day time limit.

In addition, on appeal, complainant avers further that the EEO posters

referred to by the agency do not contain relevant time frame information.

The Commission is not persuaded by complainant's allegations on appeal.

Moreover, we note that the Commission has long held that an individual is

charged with constructive knowledge of EEO time frames when an EEO poster

is on display at complainant's place of employment as is the case in the

instant matter. In that regard, we find that the agency has satisfied

its burden as to the timeliness of complainant's complaint.

On appeal, complainant has presented no persuasive arguments or

evidence warranting an extension of the time limit for initiating EEO

Counselor contact. Accordingly, the agency's final decision dismissing

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

December 20, 2007

__________________

Date

2

0120073640

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036