01983047
08-20-1999
Jerome R. Stribling, Appellant, V. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency, ______________________________)
Jerome R. Stribling v. Department of the Air Force
01983047
August 20, 1999
Jerome R. Stribling, )
Appellant, )
)
V. ) Appeal No. 01983047
) Agency No. HLOR98002
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency, )
______________________________)
DECISION
INTRODUCTION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission) from the final decision of the agency concerning
his allegation that the agency violated Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. Section 2000e, et seq. The appeal
is accepted by the Commission in accordance with the provisions of EEOC
Order No. 960.001.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for untimely contact with an EEO counselor and untimely filing
of his formal complaint.
BACKGROUND
On January 12, 1998, Appellant filed a formal complaint of discrimination
based on race (Black), when, between November 1995, and March, 1996,
he was not afforded the opportunity to apply for a certain position.
Appellant learned in November or December, 1995 that a Recycling Manager
position would soon be opened. Appellant inquired of the personnel office
regarding the position and was told that there would be no announcement.
On approximately February 21, 1996, appellant asked his supervisor why
there would be no announcement. The supervisor told appellant that
someone had been selected and that he would look into why there was
no announcement. The selection became effective March 31, 1996.<1>
On April 11, 1996, appellant received written notice from the agency of
a proposed action to remove him due to a sexual harassment complaint
filed against him by a female co-worker for his February 20, 1996,
improper remarks to her. Appellant was removed effective May 24, 1996.
Thereafter, appellant was reinstated following his appeal to the Merit
System Protection Board (the Board). The Board's January 30, 1997,
decision ordered his immediate reinstatement.
By letter dated September 19, 1997, appellant's attorney requested
information from the agency EEO office regarding the Recycling Manager
position. Appellant initiated EEO counseling on October 10, 1997.
By facsimile dated October 15, 1997, appellant's counsel permitted the
agency to discuss and process the matter directly with appellant.
Appellant received the Notice of Final Interview on December 18, 1997.
Appellant's counsel received it on December 22, 1997, notified the
agency that the complaint form described as mandatory was not included,
and requested an extension of the 15 day filing time limit until the form
was received. The agency informed appellant on December 23, 1997, that
in the absence of a particular form, a letter stating a formal complaint
was sufficient. The agency forwarded the form which appellant received
on January 5, 1998. Appellant hand-delivered his formal complaint,
dated January 6, 1998, to the EEO office on January 12, 1998.
The final agency decision dated February 3, 1998, dismissed appellant's
complaint for untimely contact with an EEO counselor, and for untimely
filing of his formal complaint.
On appeal, appellant argues that in March 1996, he was not aware
that there had been any discriminatory action; was not subject to the
personnel action; was told by his supervisor that he would be provided
an explanation for the lack of a job announcement at some unspecified
future date; and was fighting to retain employment with the agency.
Appellant argues that he was unable to focus on his complaint due to
the time and effort spent fighting to keep his job.
Appellant also argues that the agency failed to provide the mandatory
complaint form with the Notice of Final Interview received on December
22, 1997, that appellant's counsel notified the agency that the form was
not included, and requested that the agency toll the 15 day filing time
limit until appellant received the form. Appellant's counsel notes the
agency did not object to his request in its December 23, 1997, letter.
FINDINGS AND ANALYSIS
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with a counselor within 45 days of the
date of the matter alleged to be discriminatory or, in the case of
personnel action, within 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 limitation period
is triggered. See Ball v. USPS, EEOC Request No. 05880247 (July 6,
1988).
The Commission finds that appellant failed to timely initiate contact with
an EEO counselor. Using the "reasonable suspicion" standard, appellant
should have suspected discrimination on February 21, 1996, when his
supervisor told him the position was not advertised and a selection had
already been made. Fifty days lapsed between the date appellant states
his supervisor agreed to look into it and the date appellant received the
Proposed Notice of Removal. Appellant returned to work in January 1997,
and did not request information on the Recycling Manager position until
September 19, 1997. Appellant initiated EEO counseling on October 10,
1997, more than one year after appellant should have reasonably suspected
discrimination.
Because we find that appellant failed to timely initiate EEO counseling,
we need not address the issue of the timeliness of the formal complaint.
CONCLUSION
Accordingly, the decision of the agency to dismiss the complaint is
AFFIRMED.
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
August 20, 1999
_________________________ ___________________________
DATE Carlton Haddon, Acting Director
1 The record indicates the selectee, who would have been displaced in a
Reduction in Force action, was transferred to the Recycling manager
position under a Management Reassignment