01A10605_r
07-20-2001
Lee A. Black, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.
Lee A. Black v. Department of Health & Human Services
01A10605
July 20, 2001
.
Lee A. Black,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01A10605
Agency No. NCIEEO-00-0009
DECISION
On June 23, 2000, complainant filed a formal complaint alleging
discrimination in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq., the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.,
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. In his complaint, complainant
claimed he was subjected to discrimination on the bases of race, sex,
age, disability and retaliation when:
on September 29, 1997, complainant was notified of his non-selection
for the position of Associate Director, Cancer Diagnosis Program,
advertised under Vacancy Announcement No. CA-96-0320;
complainant was not referred for the position of Administrative Officer,
after submitting his application for employment on December 23, 1996;
complainant was not referred for the position of Supervisory Contract
Specialist, after submitting his application for employment on December
23, 1996; and
complainant was not referred for the position of Technical Information
Specialist, after submitting his application for employment on December
23, 1996.
The record reveals that complainant retired as an Equal Opportunity
Specialist with the Department of Housing and Urban Development on
November 3, 1983.
On October 3, 2000, the agency dismissed the complaint pursuant to EEOC
Regulation 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact.
Specifically, the agency noted that complainant did not contact an EEO
Counselor until April 19, 2000, well past the 45-day time requirement.
According to the agency, complainant, as a retired Equal Opportunity
Specialist, should have been aware of the time limit for contacting an
EEO Counselor.
On appeal, complainant argued that he was not aware of the forty-five
(45) day limitation period. Complainant further argued that he did
not work as an EEO Specialist, but rather in the area of housing
discrimination. Complainant argued that �EEO Specialists at HUD have
a 360 Series Occupational Group expertise, and there is no such 45-day
informal complaint filing requirement. It is for housing violation
not employment complaints.� Further, complainant stated that he never
received non-selection letters from the agency for any of the three
vacancies identified in claims 2 - 4. The record reflects that by
letter dated September 29, 1997, complainant was informed that he was
not selected for the position identified in claim 1.
In response, the agency argued that complainant had or should have had
a reasonable suspicion of unlawful employment discrimination as early
as September 1997, when he received notification of his non-selection of
the position of Associate Director, Cancer Diagnosis Program identified
in claim 1. The agency also argued that as a retired Equal Opportunity
Specialist, GS-13, complainant was aware or should have been aware of
the 45-day time limit prior to initiating EEO counseling.
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.
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.
According to the Equal Opportunity Counsel's Report, complainant was
informed of the 45-day limitation period for initiating EEO Counselor
contact. In the EEO Counselor's Report, the EEO Counselor stated that
complainant had indicated that he was aware of the applicable time
limitation for initiating EEO contact (i.e., 45 days from the alleged
discriminatory incident). The EEO Counselor's Report further shows
that complainant informed the EEO Counselor, in pertinent part, that
"if he needed more time it was his right to file for an extension to
prove his case."
Given these circumstances, the Commission determines that there is
sufficient evidence of record to support a finding that complainant was
aware of the 45-day limitation period. Moreover, complainant had or
should have had a reasonable suspicion of discrimination at the time
that the alleged discriminatory non-selections occurred. The record
discloses that the alleged discriminatory events occurred in December
1996 and in September 1997, but that complainant did not initiate
contact with an EEO Counselor until April 19, 2000, which is beyond
the forty-five (45) day limitation period. On appeal, no persuasive
arguments or evidence have been presented to warrant an extension of
the time limit for initiating EEO contact. Accordingly, the agency's
decision dismissing complainant's complaint on the grounds of untimely
EEO contact was proper and is AFFIRMED.
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
July 20, 2001
__________________
Date