Linwood Chisholm, Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionJun 27, 2000
01996081 (E.E.O.C. Jun. 27, 2000)

01996081

06-27-2000

Linwood Chisholm, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.


Linwood Chisholm, )

Complainant, )

)

v. ) Appeal No. 01996081

) Agency No. 99-1207

Lawrence H. Summers, )

Secretary, )

Department of the Treasury, )

Agency. )

____________________________________)

DECISION

Complainant filed a timely appeal with this Commission from a final

agency decision (FAD) dismissing complaint of unlawful employment

discrimination in violation of Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. � 2000e et seq.<1> We accept the appeal pursuant

to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. �

1614.405).

By letter dated December 14, 1998, complainant contacted the agency's EEO

office, requesting the waiver of filing deadlines and the initiation of

EEO counseling, explaining that he had attempted to handle his concerns

with management officials since May 1997, but was dissatisfied with

the results. Specifically, complainant claimed that the agency at that

time erected a mannequin of a black secret service uniformed agent in

a museum- type display near the Director's office, wearing a name tag

nearly identical to his own. According to complainant, the resemblance

to himself was so marked, he was commonly, and negatively, referred

to as �dummy.� By letter dated January 7, 1999, the agency responded

by reviewing complainant's charges and informing him that the name tag

similarity was pure coincidence, and that the agency's EEO office did

not have the authority to waive the time restrictions for contacting

an EEO Counselor. According to the Counselor's report, complainant

then again contacted an EEO Counselor on January 15, 1999. The report

additionally reflects that complainant did not make timely contact because

of attempts to address the matter directly with management officials.<2>

When counseling was unsuccessful, complainant filed a formal complaint

April 29, 1999, claiming that the mannequin was erected due to race

discrimination and in reprisal for his assistance to two employees who

successfully filed a prior EEO complaint against the agency.

In its FAD, the agency dismissed the complaint for untimely Counselor

contact, noting that his May 30, 1997, memo to the Chief reflected that

complainant suspected discrimination as of that date, yet did not initiate

EEO contact until December 1998.<3>

Complainant makes no statement on appeal, and the agency requests that

we affirm its FAD.

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.

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.

Here, complainant's May 30, 1997 letter to the Chief, wherein he complains

about his resemblance to the mannequin, also notes that this �act has

some very serious implications,� indicating that because both he and

the mannequin are black, there are �racial overtones straight from the

Secret Service Headquarters.� Furthermore, in his December 18, 1997,

letter to the Director, he specifically indicates that he has been

�singled out by management for ridicule, humiliation, and degradation�

due to his minority status. Consequently, we concur with the agency's

assessment that complainant suspected discrimination long before he

contacted an EEO Counselor and that his initial contact in December 1998

is clearly untimely. Moreover, we find that the record is devoid of any

evidence to suggest that complainant was unaware of the time requirement,

or that he was faced with circumstances which precluded timely contact.

Accordingly, we find that the agency properly DISMISSED the instant

complaint for untimely EEO contact, and we AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

June 27, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1On November 9, 1999, revised

regulations governing the EEOC's federal sector complaint process

went into effect. These regulations apply to all federal sector

EEO complaints pending at any stage in the administrative process.

Consequently, the Commission will apply the revised regulations found

at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2Although the name tag in question was removed in June 1997, complainant

apparently was demanding that agency officials disclose the �truth�

regarding the resemblance of the mannequin to himself.

3The FAD also dismissed the complaint on the alternative grounds of

failure to state a claim, finding that complainant was not �aggrieved�

and that the name tag was removed. However, due to the decision rendered

herein, we will not address this alternative grounds for dismissal.