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.