Ernie Osborne, Complainant,v.Elaine Chao, Secretary, Department of Labor, Agency.

Equal Employment Opportunity CommissionApr 24, 2003
01A22236_r (E.E.O.C. Apr. 24, 2003)

01A22236_r

04-24-2003

Ernie Osborne, Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency.


Ernie Osborne v. Department of Labor

01A22236

April 24, 2003

.

Ernie Osborne,

Complainant,

v.

Elaine Chao,

Secretary,

Department of Labor,

Agency.

Appeal No. 01A22236

Agency No. 02-03-035

DECISION

Complainant filed a timely appeal with this Commission from a final

agency decision pertaining to his complaint of unlawful employment

discrimination in violation of Section 501 of the Rehabilitation Act of

1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.

On May 22, 2001, complainant contacted the EEO office claiming that he

was discriminated against on the basis of disability. Informal efforts

to resolve complainant's concerns were unsuccessful. Subsequently,

complainant filed a formal complaint on January 18, 2002, claiming he

was discriminated against when:

(1) He requested a reasonable accommodation and, effective March 2,

1997, he was offered an Industrial Hygienist, GS-11, Step 10, position,

lesser than his previous GS-12, Step 8 position.

(2) Effective August 15, 1999, his position was changed from Industrial

Hygienist (GS-11, Step 10) to Coal Mine Safety and Health Inspector

(GS-11, Step 10).

On February 21, 2002, the agency issued a decision dismissing the

complaint on the grounds of untimely EEO Counselor contact. The agency

found that complainant did not contact the EEO counselor until May 2001,

over eighteen months after the most recent alleged action. According to

the EEO Counselor's Report, complainant claimed that he first became

aware of the discrimination after finding a relevant case on the Internet

on May 19, 2001. The agency did not find that the cited research gave

rise to a reasonable suspicion of discrimination.

On appeal, complainant states that he read and researched a relevant case

in early May 2001. He argues that �it was at that time, based on the

decision handed down in this case, that I felt I had been discriminated

against.�

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.

Here, complainant acknowledges on appeal that he did not contact an EEO

Counselor until May 22, 2001. Complainant argues, however, that only

after studying a relevant decision did he believe he was discriminated

against. The Commission, however, has found that, because the limitation

period for contacting an EEO Counselor is triggered by the reasonable

suspicion standard, waiting until one has "supporting facts" or "proof"

of discrimination before initiating a complaint can result in untimely

Counselor contact. See Bracken v. United States Postal Service, EEOC

Request No. 05900065 (March 29, 1990). The Commission is not persuaded

by complainant's contentions and finds that he should have reasonably

suspected discrimination prior to May 2001. Because complainant has

not presented sufficient justification for extending the time limit

for contacting an EEO Counselor, we find that the agency's dismissal

was proper.

Accordingly, the agency's decision is hereby 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

April 24, 2003

__________________

Date