G. Patrick Brown, Complainant,v.Sean O'Keefe, Administrator, National Aeronautics and Space Administration, Agency.

Equal Employment Opportunity CommissionJan 10, 2002
01A14172 (E.E.O.C. Jan. 10, 2002)

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.