Gilbert L. Spurlock, Complainant,v.R.L. Brownlee, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionFeb 11, 2004
01A33803_r (E.E.O.C. Feb. 11, 2004)

01A33803_r

02-11-2004

Gilbert L. Spurlock, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.


Gilbert L. Spurlock v. Department of the Army

01A33803

February 11, 2004

.

Gilbert L. Spurlock,

Complainant,

v.

R.L. Brownlee,

Acting Secretary,

Department of the Army,

Agency.

Appeal No. 01A33803

Agency No. ARCEHWYO3FEB0020

DECISION

Complainant filed an appeal with this Commission from a May 14,

2003 agency decision dismissing his complaint pursuant to 29 C.F.R. �

1614.107(a)(1), for failure to state a claim and for failure to contact

an EEO Counselor in a timely manner. In his complaint, complainant

alleged that he was subjected to discrimination on the bases of race,

color, disability, and age when he was harassed since June 16, 2000,

over a motel bill overcharge that appeared on his government credit card

and he was denied use of the credit card.

EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of

discrimination should be brought to the attention of the EEO 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 Ball v. United States Postal Service, EEOC

Request No. 05880247 (July 6, 1988). Thus, the limitations period is

not triggered until a complainant reasonably suspects discrimination,

but before all the facts that support a charge of discrimination have

become apparent.

EEOC Regulation 29 C.F.R. � 1614.105(a)(2) provides that the agency or

the Commission shall extend the time limits when an individual shows that

he or she was not notified of the time limits and was otherwise unaware

of them, that he or she did not know and reasonably should not have

known that the discriminatory matter or personnel action occurred, that

despite due diligence he or she was prevented by circumstances beyond his

or her control from contacting the counselor within the time limits, or

for other reasons considered sufficient by the agency or the Commission.

The Commission finds that EEO Counselor contact was untimely. The record

reflects that the disputed charges appeared on complainant's government

credit card bill in the year 2000. The Counselor's Report reveals that

complainant did not initiate EEO Counselor contact until February 24,

2003, concerning the credit card bill. Complainant has presented

no persuasive arguments or evidence warranting an extension of the

time limit for initiating EEO Counselor contact. Accordingly, when

complainant contacted the EEO Counselor on February 24, 2003, the contact

was untimely.

The Commission notes that complainant alleges that the agency would

not provide him with fund advances for travel. Complainant, however,

has not identified a request for an advance for travel funds that was

denied within 45 days of his February 24, 2003 EEO Counselor contact.

The agency's dismissal of the 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

February 11, 2004

__________________

Date