0120112039
01-12-2012
Joseph R. Baker, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Joseph R. Baker,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120112039
Agency No. ARFTCAMP100CT04627
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated January 24, 2011, dismissing 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Supervisor Fire Protection Specialist, Assistant Fire Chief at the
Agency’s Fort Campbell, Kentucky facility.
On November 16, 2010, Complainant filed a formal complaint alleging
that the Agency subjected him to discrimination on the basis of religion
(Episcopalian) when he was asked questions he believed were religion-based
during a job interview for promotion to the position of Fire Chief on
November 13, 2009; and when he received an email about God and sin sent
by his supervisor on March 3, 2010.
The Agency dismissed the complaint, pursuant to 29 C.F.R. §�
�1614.107(a)(2), for untimely EEO Counselor contact. The instant appeal
followed.
ANALYSIS AND FINDINGS
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 record discloses that the alleged discriminatory events occurred on
November 13, 2009, and March 3, 2010, but Complainant did not initiate
contact with an EEO Counselor until September 15, 2010, which is
beyond the forty-five (45) day limitation period. Conceding his failure
to contact an EEO counselor within 45 days of the alleged incidents,
Complainant argues that the deadline should have been waived or extended
because he did not become aware, until he took No Fear Act training on
August 16, 2010, of the possible discriminatory nature of the alleged
statements.
The Commission has adopted a "reasonable suspicion" 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. However, Complainant cites no
authority to support the contention that his unawareness of his legal
rights required the Agency to waive or extend the EEO counseling deadline,
and cites no instance in which the Commission applied the reasonable
suspicion standard in a circumstance involving an asserted ignorance of
substantive law.
This appeal is governed by our decision in Wood v. Secretary of the
Navy, EEOC Request No. 05901196 (April 10, 1991), which involved a
complainant’s untimely filing of a constructive discharge claim. The
complainant urged waiver of the filing deadline on the ground that he was
unaware he had a possible cause of action. Noting the distinction between
ignorance of the law and ignorance of relevant facts, the Commission
did not excuse the untimely filing in Wood, reasoning that complainant
had a duty to undertake reasonable efforts to ascertain his legal rights.
The circumstances here are analogous to those in Wood. Since we see no
reason for a different result, the Agency’s final decision dismissing
Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
January 12, 2012
__________________
Date
2
0120112039
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112039