01A21525_r
10-09-2002
John W. Wohlford III, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
John W. Wohlford, III v. Department of the Air Force
01A21525
October 9, 2002
.
John W. Wohlford III,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A21525
Agency Nos. 4L0J01002, AL900020415
Hearing No. 310-A0-5214X
DECISION
Complainant filed the instant appeal from the agency's decision dated
November 15, 2001, dismissing his complaint. The agency's decision
dismissed complainant's complaint as follows:
You allege your supervisor annotated reprisals against you on various
occasions. You allege eight (8) incidents of reprisals. Four (4) of
these incidents occurred in 2000, and four (4) other incidents occurred
between January and March of 2001.
Your seven (7) claims of reprisal are being dismissed as untimely. ...
Your eighth claim of reprisal of March 26, 2001, confiscation of your line
badge by your supervisor and the proposed letter of reprimand dated 25
April 01, for use of abusive language, quarreling or inciting to quarrel,
threatening to inflict bodily harm on another employee is being dismissed
pursuant to 29 CFR 1614-301, election to proceed in an alternate forum
(union). ...
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.
The record discloses that for claims 1 - 7, the most recent alleged
discriminatory event occurred in March 2001, but complainant did not
initiate contact with an EEO Counselor until June 6, 2001, which is
beyond the forty-five day limitation period. On appeal, complainant has
presented no persuasive arguments or evidence warranting an extension
of the time limit for initiating EEO Counselor contact. Accordingly,
the agency's decision to dismiss claims 1 - 7 pursuant to 29 C.F.R. �
1614.107(a)(2) for untimely EEO contact was proper.
The regulation set forth at 29 C.F.R. � 1614.107(a)(4) provides that an
agency may dismiss a complaint where the complainant has raised the matter
in a negotiated grievance procedure that permits claims of discrimination.
In the instant case, the record shows that complainant grieved the matter
identified as claim 8 concerning the confiscation of complainant's
(restricted access) line badge. Additionally, the record shows that
under the terms of the agency's union agreement, employees have the
right to raise matters of alleged discrimination under the statutory
procedure or the negotiated grievance procedure, but not both. As the
record indicates that complainant elected to pursue the matter within
the grievance procedure, we find that the agency properly dismissed
claim 8 pursuant to 29 C.F.R. � 1614.107(a)(4).
Accordingly, we AFFIRM the agency's decision dismissing the complaint.
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
October 9, 2002
__________________
Date