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