01980759
10-02-1998
Keith M. Sharp, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Contract Audit Agency), Agency.
Keith M. Sharp, )
Appellant, )
)
v. ) Appeal No. 01980759
) Agency No. W97-13
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Contract Audit )
Agency), )
Agency. )
______________________________)
DECISION
Based on a review of the record, we find that the agency properly
dismissed three allegations in appellant's complaint, pursuant to EEOC
Regulation 29 C.F.R. �1614.107(b), for failure to initiate contact
with an EEO Counselor in a timely manner. Appellant alleged that he
was subjected to discrimination on the bases of sex (male), age (DOB
5/4/46), physical disability (back and leg problems), mental disability
(stress-related gastritis), and in reprisal for prior EEO activity when:
On March 10, 1997, appellant received a letter from the Deputy Regional
Director ordering him to report to work on March 17, 1997;
On March 24, 25, and 28, 1997, management ignored appellant's doctor's
orders for appellant to rest and ordered him to work;
The agency's personnel office fabricated facts to contravene appellant's
Workers' Compensation claims (filed on May 6, 1997) and failed to make
corrections when appellant notified the office of its errors;
On March 25, 1997, the Regional Audit Manager denied appellant's
request to use his two (2) weeks annual leave, or any other leave,
despite appellant's doctor's orders;
On June 6, 1997, appellant's supervisor sent appellant a memorandum
advising him that he had been Absent Without Leave since May 23,
1997; and
Appellant was told his June 1997 request for leave donations had not
been received and he did not receive any follow-up regarding the status
of either that request or his subsequent request for leave donations.
On November 4, 1997, the agency issued a final decision accepting
allegations (3), (5), and (6) for investigation, and dismissing
allegations (1), (2), and (4), pursuant to 29 C.F.R. �1614.107(b), for
untimely EEO Counselor contact. Specifically, the agency determined that
appellant's June 19, 1997 initial EEO Counselor contact occurred more
than forty-five (45) days from the date on which the incidents identified
in allegations (1), (2), and (4) occurred, thus making it untimely.
On appeal, appellant contends that he "did not realize, due to the nature
and extent of [his] injuries, heavy medication, extreme pain, and worries
about [his] health and survival of [his] family, while hospitalized
and subsequently flat on [his] back at home, too ill to even shower,
and without counsel, that [he] needed to contact an EEO Counselor until
after the 45-day time limit." Further, appellant asserts that his prior
complaints were filed for him by his attorneys. Based on the foregoing,
appellant sought an extension of the applicable time limit.
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 Ball v. USPS, EEOC Request
No. 05880247 (July 6, 1988). 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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Appellant acknowledges that he knew about the incidents that occurred in
allegations (1), (2), and (4) at the time they occurred. Further, the
record indicates that appellant filed previous EEO complaints concerning
the agency's alleged discrimination based on his disability. We find,
therefore, that appellant had, or should have had a reasonable suspicion
of discrimination at the time on which the incidents occurred.
We have consistently held, in cases involving physical or mental health
difficulties, that an extension is warranted only where an individual is
so incapacitated by his condition that he is unable to meet the regulatory
time limits. See Crear v. United States Postal Service, EEOC Request
No. 05920700 (October 29, 1992); Weinberger v. Department of the Army,
EEOC Request No. 05920040 (February 21, 1992); Hickman v. Department
of the Navy, EEOC Request No. 05910707 (September 30, 1991); Johnson
v. Department of Health and Human Services, EEOC Request No. 05900873
(October 5, 1990); and Zelmer v. United States Postal Service, EEOC
Request No. 05890164 (March 8, 1989).
In the present case, appellant failed to present evidence to show
that he was so incapacitated that he could not have initiated EEO
Counselor contact. Further, the record contains numerous correspondence
from appellant to the agency written while he was off work due to
his injury, indicating that appellant was not incapable of timely
contacting an EEO Counselor. Based on the foregoing, we find that the
agency properly dismissed allegations (1), (2), and (4) pursuant to 29
C.F.R. �1614.107(b). Accordingly, the agency's final decision dismissing
allegations (1), (2), and (4) 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. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
Oct. 2, 1998
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations