01A14172
01-10-2002
G. Patrick Brown, Complainant, v. Sean O'Keefe, Administrator, National Aeronautics and Space Administration, Agency.
G. Patrick Brown v. National Aeronautics and Space Administration
01A14172
01-10-02
.
G. Patrick Brown,
Complainant,
v.
Sean O'Keefe,
Administrator,
National Aeronautics and Space Administration,
Agency.
Appeal No. 01A14172
Agency No. NCN98LARCA001
DECISION
INTRODUCTION
Complainant timely filed an appeal with this Commission from the
final agency decision, concerning his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq. Upon review, the Commission finds
that the agency properly dismissed complainant's formal EEO complaint
for untimely EEO Counselor contact. See 29 C.F.R. � 1614.107(a)(2).
ISSUE PRESENTED
The issue presented herein is whether the agency properly dismissed
complainant's formal complaint for failure to seek EEO counseling within
45 days of the date of the matter alleged to be discriminatory.
BACKGROUND
Complainant filed a formal complaint on March 14, 1999, alleging that he
was discriminated against on the basis of reprisal (prior EEO activity)
when the agency did not transfer him to Building 1293. The record
reflects that the agency reassigned complainant to Building 1293 after
the operations in Building 1205 were suspended. Complainant asserted
that, in April 1998, the Branch Head (RMO) promised to permanently
assign complainant to Building 1293 after he completed training in
Building 1205. In late September or early October 1998, after a Branch
Meeting, complainant averred that RMO told him that he would never be
reassigned to Building 1293. On November 20, 1998, complainant received
paperwork stating that he was being permanently assigned to Building 1205.
The record reflects that complainant sought EEO Counseling in mid to
late December 1998.
On April 9, 2001, an EEOC Administrative Judge issued a decision finding
that the present complaint should be dismissed for failure to contact
an EEO Counselor in a timely manner.<1> See 29 C.F.R. 1614.105(a)(1).
The agency implemented the Administrative Judge's decision on May 21,
2001. It is from that decision that complainant appeals.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints
of discrimination 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. 29 C.F.R. � 1614.105(a)(2).
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1), for untimely
EEO contact. The record indicates that complainant became aware that the
agency was not going to transfer him to Building 1293 in late September or
early October 1998, but complainant did not initiate contact with an EEO
Counselor until mid to late December 1998, which is beyond the forty-five
(45) day limitation period. On appeal, complainant contends that he waited
to seek an EEO counselor until he finished his training in Building 1205.
Complainant, however, admits in his affidavit that he made a connection
between RMO's decision not to transfer him and his prior EEO activity
soon after the Branch Meeting. After a careful review of the record,
we find that complainant has failed to present adequate justification
for extending the limitation period beyond forty-five days. Therefore,
we find that the administrative judge's decision to dismiss the complaint
for failure to initiate contact with an EEO Counselor in a timely manner
was proper.
CONCLUSION
Accordingly, we AFFIRM the agency's final decision.
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
___01-10-02_______________
Date
1 The AJ also addressed two other issues in his decision. Complainant,
however, does not raise those issues on appeal. Accordingly, the
Commission will not address those issues in this decision.