01A20495_r
02-28-2002
Hans-Georg F. Wurfel, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Hans-Georg F. Wurfel v. Department of the Air Force
01A20495
February 28, 2002
.
Hans-Georg F. Wurfel,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A20495
Agency No. EB1M1004
DECISION
Complainant filed an appeal with this Commission from an agency decision
regarding his complaint of unlawful employment discrimination in violation
of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq.; the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.; Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. The Commission accepts the appeal in accordance with 29
C.F.R. � 1614.405.
On April 5, 2001, complainant contacted the EEO office regarding claims
of discrimination based on age, disability, and sex. Informal efforts
to resolve complainant's concerns were unsuccessful. On June 5, 2001,
complainant filed a formal complaint. The agency framed the claims
as follows:
Complainant was allegedly discriminated against based on age and
disability when:
(1) on approximately June 21, 1999, Lt Col �A� made reference to
complainant not carrying his full load and that his inability to
extensively travel in support of the squadron programs was indicative
of his not supporting the squadron mission;
(2) from January to June 1999, Lt Col �A�occasionally made reference
to complainant as the �old man� of the squadron;
(3) in June or July 1999, Lt Col �A� asked the �old man of the squadron�
(referring to complainant) to come forward and get his 30-year pin;
(4) on June 14 or 15, 1999, Lt Col.�A� questioned complainant about
being eligible for retirement because of his disability;
(5) on July 30, 1999, complainant requested to come back to work as
Director of DT&E and Lt. Col �A� refused and therefore forced him to
use 4000 hours of compensatory time;
(6) in November 1999, Lt. Col. �A� readjusted his OCS score from 90 to
86 based on Col B's unsubstantiated investigation results;
(7) in November 1999, Lt. Col �A� reassigned complainant to the
Technology Management Office.
Complainant was allegedly discriminated against based on sex when:
(8) on August 2 or 9, 1999, Col �B� refused to let complainant bring
legal counsel to the deposition;
(9) on August 2 or 9, 1999, Col �B� failed to halt the investigation
that had been compromised by undue influence by a witness; and,
(10) in August or September 1999, Col �B� refused to request a drug
test on �C�.
On July 2, 2001, the agency issued a decision dismissing the complaint for
untimely EEO Counselor contact and failure to state a claim. The agency
found that there was no record of complainant discussing or filing an
informal EEO complaint on the claims before April 26, 2001, which was
well beyond the forty-five day time limitation. Regarding claims 5 and
6, the agency stated that complainant told the EEO manager on April 5,
2001, that in March 2000, he left the EEO office with the intention of
filing a Merit Systems Protection Board (MSPB) complaint on the issues.
Consequently, the agency concluded that complainant did not express an
intent to file an EEO complaint on claims 5 and 6 until April 26, 2001,
more than forty-five days after the events occurred. Claims 8, 9, and
10 were also dismissed for failure to state a claim. According to the
agency, complainant failed to identify how the alleged incidents resulted
in a harm or loss to a term, condition or privilege of his employment.
On appeal, complainant states that after conferring with the Inspector
General (IG) Office and the MSPB, he filed a complaint with the Office of
Special Counsel (OSC) on March 29, 2000. Complainant further states that
it was not until February 15, 2001, that a preliminary determination was
made that the issues were outside of OSC's authority. Complainant argues
that it was only after this determination was completed, on March 30,
2001, that he was free to file under the EEO process.
In response, the agency notes that complainant does not contest its
dismissal of claims 8, 9, and 10 for failure to state a claim, but only
disputes the untimely EEO Counselor contact. While complainant contends
that since he filed with OSC he was prohibited from also filing with
the EEO process, the agency argues that Commission precedent states
that contact with OSC does not toll the time limit for contact an EEO
Counselor. Additionally, the agency states that although complainant
contacted an EEO Counselor in March 2000, he did not express a belief
that he had suffered discrimination nor an intent to file an informal
EEO complaint at that time.
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.
In the instant case, all of the alleged incidents occurred in 1999.
Complainant, however, waited
until April 5, 2001 to contact the EEO Counselor, well beyond the
forty-five day time limitation. Complainant argues on appeal that he
was unable to start the EEO process until after the OSC determined that
the issues were outside of its authority. The Commission, however,
will not toll the time for complainant to contact an EEO Counselor
where complainant raises a complaint with the Office of Special Counsel.
See Steinert v. Department of Veterans Affairs, EEOC Request No. 05960535
(October 10, 1997). Therefore, we find that the agency properly dismissed
claims 1-10 for untimely counselor contact.
Because of our disposition we do not consider whether claims 8, 9 and
10 were also properly dismissed on other grounds.
Accordingly, the agency's decision was proper and 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
February 28, 2002
__________________
Date