01976787
11-05-1998
Jerome A. Alford, Appellant, v. John H. Dalton, Secretary, Department of the Navy, Agency.
Jerome A. Alford v. Department of the Navy
01976787
November 5, 1998
Jerome A. Alford, )
Appellant, )
) Appeal No. 01976787
v. ) Agency No. DON-92-00251-060
)
John H. Dalton, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency 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. The final agency decision (FAD) was dated August
8, 1997 but sent to Appellant, via certified mail, on August 13, 1997.
The appeal was postmarked September 9, 1997. Accordingly, the appeal
is timely, (See 29 C.F.R. � 1614.402(a)), and is accepted in accordance
with EEOC Order 960, as amended.
ISSUES PRESENTED
The issues on appeal are as follows:
Whether or not appellant contacted an EEO Counselor in a timely manner;
and
Whether or not appellant's complaint of race discrimination states a
claim upon which relief may be granted.
BACKGROUND
A review of the record reflects that on April 29, 1997, appellant
initiated the informal EEO process and alleged discrimination on the basis
of race (Caucasian) when, beginning on September 3, 1996, appellant's
Foreman allowed a co-worker (Employee A) (Asian) to perform Hazardous
Material Coordinator, WG-8 duties on a full-time basis even though he
was an Automotive Mechanic, WG-10.
Appellant further alleged that on September 3, 1996, appellant was
temporarily promoted to the position of Automotive Mechanic WG-10.
Previously his official position was that of Motor Vehicle Operator, WG-6.
At the time appellant was promoted, Employee A was also promoted to the
Automotive Mechanic WG-10 position. Prior to the promotion, appellant
performed duties as an auto shop hazardous material coordinator and
safety monitor. Appellant trained Employee A on the safety and hazardous
material procedures. At the time of the promotions, appellant moved into
the shop as a full-time automotive mechanic while Employee A continued
to perform the HAZMAT/safety functions while remaining assigned to the
Automotive Mechanic, WG-10 position.
Appellant alleges in his complaint that Employee A is performing
the duties of a Hazardous Material Handler, WG-8 rather than as an
Automotive Mechanic, WG-10. Appellant further alleges that an Asian
supervisor is shielding Employee A from performing mechanical duties.
Appellant claims that other supervisors have requested that Employee
A perform mechanical duties but that the Asian supervisor had blocked
their requests. In addition, appellant alleges that Employee A has been
provided an office and phone which appellant does not have. Appellant
believes that Employee A should be either assigned mechanical duties or
be downgraded to WG-8, in accordance with the duties being performed.
The agency dismissed appellant's complaint of racial discrimination
because: (1) appellant's initial contact with an EEO Counselor was
untimely; and (2) appellant's complaint fails to state a claim.
For reasons set forth below, we AFFIRM the agency's dismissal on the basis
that appellant's initial contact with the EEO Counselor was untimely and
accordingly we do not address the issue of whether appellant's complaint
fails to state a claim.
ANALYSIS AND FINDINGS
It is not disputed that appellant first contacted an EEO Counselor on
April 29, 1997. It is also undisputed that appellant was aware of the
time limit to contact an EEO Counselor. Accordingly, the sole issue we
must decide is the date the 45-day time period for initiating contact
with an EEO Counselor commenced.
EEO Regulation 29 C.F.R. �1614.105(a)(1)requires that complaints of
discrimination be brought to the attention of an EEO Counselor within 45
days of the alleged discriminatory event, or the effective date of an
alleged discriminatory personnel action. The Commission has adopted a
"reasonable suspicion" standard (as opposed to a "supportive facts"
standard) to determine when the limitation period for contacting an
EEO Counselor is triggered under the applicable regulations. See Ball
v. USPS, EEOC Request No. 05880247 (July 6, 1988). The time period is
triggered as soon as a complainant reasonably suspects discrimination,
and the complainant may not wait until all supporting facts have become
apparent. Queener v. USPS, EEOC Appeal No. 01966745 (July 16, 1997).
In order to determine when the 45-day time period began, we must
determine when appellant reasonably suspected that Employee A was
performing Hazardous Material Coordinator duties full-time. The record
reflects and appellant asserts that both appellant and Employee A were
promoted to Automotive Mechanic, WG-10 positions on September 3, 1996.
In addition, appellant states that he trained Employee A to perform
the Hazardous Material Coordinator duties and that Employee A had been
performing such duties since his promotion on September 3, 1996.
While appellant did not provide a statement on appeal presenting his
position on this issue, according to the Final Interview in appellant's
Informal Complaint, appellant contends that he had not contacted an EEO
Counselor earlier because he "just became aware" that his Foreman had
denied other supervisors' requests to have Employee A perform mechanic
duties.
The agency argues that appellant should have had a reasonable suspicion
of discrimination on, September 3, 1996, the date of the promotions,
or soon thereafter, once appellant was able to realized that Employee
A was performing Hazardous Material Coordinator duties full-time.
The Commission finds that appellant had, or should have had, a
reasonable suspicion of discrimination in September, 1996, when, by
his own admission, he trained Employee A to perform Hazardous Material
Coordinator duties and observed Employee performing said duties full-time.
Appellant's initial EEO counselor contact on April 29, 1997, was well
beyond the limitation period for initiating timely contact. Appellant has
failed to present adequate justification for extending the limitation
period. Accordingly, for the reasons stated hereinabove, we find that
the 45-day time limit began in September, 1996, when appellant first
realized that Employee A was performing Hazardous Coordinator duties
full-time. Therefore, we hereby AFFIRM the FAD and accordingly, do not
reach the merits of the agency's second basis for dismissal on the issue
of failure to state a claim.
STATEMENT OF RIGHTS -- ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Nov 5, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations