John W. Wohlford III, Complainant,v.Dr. James G. Roche, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionOct 9, 2002
01A21525_r (E.E.O.C. Oct. 9, 2002)

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