01991559
03-29-2001
Willie D. Lee, Sr., Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.
Willie D. Lee, Sr. v. Department of the Army
01991559
March 29, 2001
.
Willie D. Lee, Sr.,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01991559
Agency No. ANBKFO9810I0380
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision pertaining to his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq.; Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.;
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The Commission accepts the appeal in accordance
with 29 C.F.R. � 1614.405.
On November 13, 1997, complainant contacted the EEO office regarding
claims of discrimination based on race, color, national origin,
sex, disability, age, and in reprisal for prior protected activity.
Informal efforts to resolve complainant's concerns were unsuccessful.
Complainant thereafter filed a formal complaint claiming that he was
discriminated against when:
1) In April 1997, management denied him accommodations, specifically
the opportunity to work at home; a high back chair; and a motorized cart;
2) In May 1997, he was forced to retire because the agency would not
provide the accommodations requested; and,
3) On November 13, 1997, he was treated unfairly when he was denied
access to the Redstone Arsenal. Security guards tried to intimidate him
so he would leave the building.
On November 16, 1998, the agency issued a decision dismissing the
complaint. Specifically, the agency dismissed claims (1) and (2) for
untimely EEO Counselor contact. Regarding claim (1) the agency noted
that complainant cited April 1997, but did not provide a specific date.
Assuming the incident occurred as late as April 30, 1997, the agency
determined that complainant's contact was 197 days after the alleged
event. Complainant also failed to provide a specific date with respect
to claim (2) but, according to the agency, records showed that the Office
of Personnel Management (OPM) received his retirement application on May
20, 1997. Therefore, the agency reasoned that if the event occurred on
May 20, 1997, complainant waited 177 days before contacted the EEO office.
Claim (3) was dismissed for failure to state a claim. The agency found
that complainant was not an aggrieved employee when he was denied access
to agency grounds following his retirement, which was effective on June
11, 1997.
On appeal, complainant contends that he was on medication when he
signed his retirement papers and was unable to make rational decisions.
He argues that the agency illegally sent a representative to his home
to obtain his signature while he was medicated.
In response, the agency argues that simply being under a physician's care
is not sufficient to toll or extend the time limit for contacting an EEO
Counselor. Further, the agency reiterates its reasoning in dismissing
the complaint and requests that the Commission affirm its decision.
Claims 1 and 2
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, the record reveals that with respect to both claims (1) and (2),
complainant contacted the EEO office well beyond the forty-five-day time
limitation. On appeal, we note that although complainant argues that he
should not have signed retirement paperwork while medicated, he does not
present any contentions specifically addressing the timeliness of his EEO
Counselor contact. 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 Davis v. United States Postal
Service, EEOC Request No. 05980475 (August 6, 1998); Crear v. United
States Postal Service, EEOC Request No. 05920700 (October 29, 1992).
The record does not show that complainant was so incapacitated that he
was unable to contact the EEO office.
In a memo dated October 16, 1998, from complainant to the EEO Counselor,
complainant indicates that he waited more than forty-five days before
contacting the Counselor because he tried to address the matter with his
supervisor and other agency officials. The Commission has 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 Kramer v. U.S. Postal Service, EEOC Appeal
No. 01954021 (October 5, 1995); Williams v. U.S. Postal Service, EEOC
Request No. 05910291 (April 25, 1991).
Claim 3
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
Here, complainant contends he was discriminated against when he was denied
access to the Redstone Arsenal building. According to complainant the
security guards tried to intimidate him so he would leave. In dismissing
the claim, the agency reasoned that during the relevant time complainant
was no longer an employee and had no need for access. We find that
complainant failed to show how he was harmed by the alleged incident.
The record contains no evidence supporting a determination that
complainant was an employee or an applicant for agency employment at
the time that the matter raised in claim (3) purportedly occurred. The
Commission sees no nexus between the alleged incident and complainant's
employment relationship with the agency. Accordingly, the agency's
decision to dismiss the complaint was proper and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
March 29, 2001
__________________
Date