01a53853
08-16-2005
Randy Mack, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Randy Mack v. Department of the Army
01A53853
August 16, 2005
.
Randy Mack,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A53853
Agency No. ARJACKSON04DEC08397
DECISION
Complainant filed an appeal with this Commission from the April 14,
2005 agency decision dismissing his complaint pursuant to 29 C.F.R. �
1614.107(a)(2), for failure to contact an EEO Counselor in a timely
manner.
In his complaint, complainant alleged that he was subjected to
discrimination on the basis of race (Black) when after voluntarily
transferring as a plumber WG-09 from Cherry Point, North Carolina to Fort
Jackson, South Carolina, complainant's pay rate was reduced from $22.64
per hour to $17.24 per hour, although he was performing the same work at
Fort Jackson that he had previously performed for $22.64 an hour at Cherry
Point. Complainant alleged that on November 2, 2004, he learned that a
Caucasian male in Plumber Maintenance at Fort Jackson had also accepted
a voluntary transfer from Cherry Point and did not have his pay reduced.
In its decision dismissing the complaint, the agency indicated that
complainant became aware of the difference in pay on November 2, 2004,
but did not express his intent to pursue the EEO process until February
24, 2005.
The record reveals that the alleged discriminatory pay rate reduction
occurred on October 31, 2004. The record reveals further that complainant
met with an EEO Counselor on December 9, 2004, concerning his rate of pay.
The record also contains an agency EEO form Memorandum, dated December 9,
2004, in which complainant checked off item "c" on the form. Item "c"
stated that complainant was deferring his decision "to pursue my matter"
until a later date. Item "c" also stated that complainant had been
informed and understood that he had 45 calendar days from the date
of the alleged discrimination or the date that he became aware of the
discrimination process to file an EEO complaint. The Memorandum also
indicated that the EEO complaint and mediation processes were explained to
complainant. The record reveals that complainant signed the Memorandum.
The record contains electronic mail messages which reflect that the
EEO Counselor was in communication with the Civilian Personnel Advisory
Center (CPAC) regarding complainant's rate of pay. A handwritten note
appearing next to a January 5, 2005 electronic mail message states that
the EEO Counselor had updated complainant on January 12. A January 13,
2005 electronic mail from the CPAC Director to agency personnel states
that complainant's official personnel matter was needed regarding an
"EEO issue." The record also contains an electronic mail message, also
dated January 13, 2005, to the EEO Counselor from the CPAC Director in
which the CPAC Director stated that the "CPOC" still had not received
complainant's official personnel folder. A February 2, 2005 electronic
mail message from the CPAC Director reflects that the CPAC Director met
with complainant on February 2, 2005, and that after the CPAC Director
explained to complainant that his pay was correct, complainant stated to
her that he had a better understanding of his concerns. The February
2, 2005 electronic mail message reflects that the EEO Counselor was
sent a copy. A handwritten note, dated February 3, 2005, which was
written by the EEO Counselor on a copy of an electronic mail message,
reflects that complainant called the EEO Counselor on February 3, 2005.
The handwritten note states that complainant would not pursue the matter
and that he regretted that his co-worker may have been overpaid and
might have to re-pay the overpayment.
The record also contains complainant's affidavit, dated May 31, 2005.
Complainant stated in his affidavit that upon learning of the pay
difference, he contacted an EEO Counselor with the intention of beginning
the EEO process and that he believed that he had complied with the first
step of the EEO process by contacting an EEO Counselor. Complainant also
stated that in the December 9, 2004 meeting with the EEO Counselor, the
EEO Counselor informed complainant that complainant would receive other
information concerning his claim as soon as the EEO Counselor returned
to work from having surgery and that there would be no problem with any
filing deadlines. Complainant further stated in his affidavit that he
believed that he was misled by the EEO Counselor about the procedure
for filing a formal complaint and that the form he signed on December 9,
2004, did not explain to him how to file a formal EEO complaint nor did
the EEO Counselor explain to him how to file a formal complaint.
The record contains the June 30, 2005 affidavit of the EEO Counselor.
The affidavit reveals that the EEO Counselor met with complainant on
December 9, 2004, regarding complainant's rate of pay and that the EEO
Counselor determined that the purpose of the meeting was that complainant
was seeking information on the EEO process. The affidavit also reveals
that the EEO Counselor explained the informal and formal stages of the EEO
complaint process to complainant and "emphasized" the 45-day time limit
for filing a complaint. The EEO Counselor stated in the affidavit that he
emphasized to complainant that complainant had not initiated an informal
EEO complaint and at the time, complainant only expressed his desire
to obtain a satisfactory answer from CPAC without filing a complaint.
The EEO Counselor stated that complainant informed him that complainant
had previous discussions with CPAC personnel regarding his pay rate and
he wanted to give them a chance to respond before he took any actions.
The EEO Counselor stated that although he told complainant that he would
be away from the office on sick leave, he did not tell complainant that
he would contact him. The EEO Counselor stated that he told complainant
to contact Counselor B, an EEO Specialist, if he changed his mind and
wanted to file an informal complaint. The EEO Counselor further stated
that he was on sick leave from December 13, 2004, until January 10, 2005.
The EEO Counselor stated that because of his desire to assist complainant
in obtaining answers, he asked for and obtained complainant's permission
to contact CPAC personnel on his behalf. The EEO Counselor also stated
that he was sure that complainant understood that his offer to assist
him was not his initiation of an informal complaint.
In his affidavit, the EEO Counselor stated further that the CPAC
Director informed him that she had met with complainant on February 2,
2005, and provided complainant with an explanation regarding his pay
and complainant told her that he understood. The EEO Counselor also
stated that complainant called him on February 3, 2005, to say that
he had accepted the CPAC's explanation and that he would not pursue an
EEO complaint. The EEO Counselor further stated that on February 24,
2005, complainant contacted him and expressed his desire for the first
time to proceed with an EEO complaint and that on February 28, 2005,
he assigned another EEO Counselor to counsel complainant.
In his affidavit, the EEO Counselor stated that at no time did he lead
complainant to believe that complainant should not be concerned with
timeliness nor did he tell complainant that he would respond to him in
writing about his EEO complaint. The EEO Counselor also stated that he
never discouraged complainant from filing an EEO complaint.
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 also provide that the agency or the Commission shall
extend the time limits when the individual shows that he or she was
not notified of the time limits and was not otherwise aware of them,
that he or she did not know and reasonably should not have known that
the discriminatory matter or personnel action occurred, that despite
due diligence he or she was prevented by circumstances beyond his or her
control from contacting the EEO Counselor within the time limits, or for
other reasons considered sufficient by the agency or the Commission.
See 29 C.F.R. � 1614.105(a)(2). The time limits are also subject to
waiver, estoppel and equitable tolling. See 29 C.F.R. � 1614.604(c).
The Commission has held that in order to establish EEO Counselor contact,
an individual must contact an agency official logically connected to the
EEO process and exhibit an intent to begin the EEO process. See Allen
v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996).
The Commission has also consistently held that utilization of internal
agency procedures, union grievances, and other remedial processes does
not toll the time limit for contacting an EEO Counselor. See Hosford
v. Department of Veterans Affairs, EEOC Request No. 05890038 (June 9,
1989).
Upon review, the Commission finds that the agency's dismissal was proper.
We find that when complainant contacted the EEO Counselor on December
9, 2004, complainant did not demonstrate an intent to commence the EEO
process. The first date the record persuasively shows that complainant
contacted an EEO Counselor with the intent to commence the EEO process
was on February 24, 2005, which was beyond the 45-day time limit.
We note that complainant agreed on December 9, 2004, to defer his
decision to pursue the matter until a later date. The form completed by
complainant on December 9, 2004, specifically notes a 45-day time limit.
Even if complainant was confused, as he claims, and thought the 45-day
time limit commenced on December 9, 2004, he still failed to make such
contact within 45 days of December 9, 2004.
Accordingly, the agency's dismissal of the complaint 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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 (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
August 16, 2005
__________________
Date