0120113685
11-21-2012
Yun Chen, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Yun Chen,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120113685
Agency No. ARSHAFTER11APR01868
DECISION
Upon review, the Commission finds that the Agency's decision dated July 1, 2011, dismissing Complainant's complaint due to untimely EEO Counselor contact is proper pursuant to 29 C.F.R. � 1614.107(a)(2). For the following reasons, we AFFIRM the Agency's decision.
BACKGROUND
In his complaint, dated June 10, 2011, Complainant alleged discrimination based on national origin (Chinese), age (over 40), and disability when; on January 10, 2011, he had resigned from his position at the Clinical Investigation Division; on October 22, 2010, the Chief of Department of Clinical Investigation had purportedly provided him a notice of Administrative Controls on Use of Leave; on October 14, 2010, the Chief purportedly denied his leave request
for annual and sick leave and informed him that she was placing him on Absent without Leave (AWOL) status; on March 25, 2010, the Chief purportedly denied him continuation of pay (COP) as part of his December 18, 2009 work injury and subsequent Workers' Compensation claim. The Agency dismissed the instant complaint due to untimely EEO Counselor contact. Specifically, the Agency stated that Complainant contacted an EEO Counselor with regard to the instant claims on March 8, 2011, which was beyond the 45-day time limit set by the regulations.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of the EEO Counselor within 45 days of the alleged discriminatory event, or the effective date of an alleged discriminatory personnel action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the limitation period is triggered under the EEOC Regulations. See 29 C.F.R. � 1614.105(a)(2); Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period is not triggered until a complainant reasonably should have suspected discrimination, but before all the facts that would support a charge of discrimination have become apparent.
Complainant claimed that he was discriminated against by the Chief from March 25, 2010, to January 10, 2011. Upon review, we find that Complainant knew or reasonably should have suspected discrimination concerning the matters at the time of the alleged incidents. Complainant however did not contact an EEO Counselor contact concerning the matters until March 8, 2011, which was beyond the 45-day time limit set by the regulations. On appeal, Complainant fails to present adequate justification to warrant an extension of the applicable time limit for contacting an EEO Counselor. In response to Complainant's appeal, the Agency submits its records indicating that Complainant knew of the requisite time limit via EEO trainings in 2009 and 2010. Complainant proffers no evidence otherwise.
CONCLUSION
Accordingly, the Agency's final decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
11/21/12
__________________
Date
2
0120113685
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013