01A10035
12-28-2000
Ashok K. Savla, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Contract Audit Agency), Agency.
Ashok K. Savla v. Defense Contract Audit Agency
01A10035
December 28, 2000
.
Ashok K. Savla,
Complainant,
v.
William S. Cohen,
Secretary,
Department of Defense,
(Defense Contract Audit Agency),
Agency.
Appeal No. 01A10035
Agency No. W00-12
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.<1> The Commission accepts the
appeal in accordance with 29 C.F.R. � 1614.405.
On November 29, 1999, complainant contacted the EEO office claiming he
was discriminated against when he received a performance appraisal.
Informal efforts to resolve complainant's concerns were unsuccessful.
On June 26, 2000, complainant filed a formal complaint.
On August 31, 2000 the agency issued a decision, noting that because
complainant's complaint was in the form of a memorandum, and some
necessary information was absent, the missing information was taken from
the Counselor's Report and pre-complaint worksheet. The agency framed
the complaint as one based on national origin and sex where:
On August 13, 1999, complainant received a performance appraisal of
exceeds fully successful for the period from July 1, 1998 to June 30,
1999.
The agency also noted that although the EEO Counselor only identified
the above claim and the formal complaint did not identify complainant's
claims, the pre-complaint worksheet made reference to three other
incidents:
On July 23, 1997, complainant's appraisal was upgraded to outstanding;
however, he did not receive a monetary award;
On September 23, 1999, complainant received a response to his informal
grievance from the Branch Manager; and,
On November 9, 1999, complainant received a final decision on his formal
grievance from the Regional August Manager.<2>
Finding that complainant waited more than 90 days after receiving his
performance appraisal before contacting the EEO office, on November 30,
1999, the agency dismissed claim (1) for untimely Counselor contact.
The agency found that complainant had filed a grievance prior to
initiating the EEO process, but noted that filing a grievance does not
toll the time limitation. Further, the agency asserted that even if an
earlier memorandum from complainant, prepared on October 8, 1999, could
be construed as a request for counseling, it was also outside of the
forty-five day time limitation.<3> Regarding the other three incidents,
the agency determined that claim (2) was also untimely raised before an
EEO Counselor, and that claims (3) and (4) failed to state a claim.
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 she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The record shows that complainant contacted the EEO office on November 29,
1999, more than forty-five days after the alleged discriminatory event.
On appeal, complainant contends that after receiving the appraisal on
August 13, 1999, he filed an informal grievance. Complainant argues that
�every avenue was taken in a timely manner to resolve the performance
appraisal complaint.� The record shows that prior to contacting the
EEO office, complainant did file an informal grievance, and later a
formal grievance. On November 9, 1999, the agency issued a decision on
the grievance. It is only after the conclusion of the grievance process
that complaint sought EEO counseling. The Commission has consistently
held that the use of the negotiated grievance procedure does not toll
the time limit for contacting an EEO Counselor. Schermerhorn v. United
States Postal Service, EEOC Request No. 05940729 (February 10, 1995).
Therefore, we find the agency's dismissal of claim (1) for untimely
counselor contact was proper.
In its final decision, the agency stated that it is unclear whether
the other incidents described by complainant in his pre-complaint form
were intended as background material for the appraisal claim (claim
(1)) or as independent claims. To the extent that claims (2) - (4)
are construed as independent claims of discrimination, the agency's
decision to dismiss them was proper. As in claim (1), claim (2) was
properly dismissed on the grounds that it was untimely raised with the
EEO Counselor. The alleged event occurred in 1997, and complainant did
not contact the EEO office until late 1999.
Claims (3) and (4) fail to state a claim, as determined by the agency.
These claims relate to the matter raised in claim (1). By receiving
determinations on his informal and formal grievances, complainant has
not suffered a harm or loss regarding a term, condition, or privilege
of his employment that is independent of the harm alleged in claim (1).
Consequently, we find that claims (3) and (4) fail to state a claim.
See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994).
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
December 28, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov..
2The Commission notes that the agency decision did not number the first
claim, regarding the appraisal, but did number the other three incidents.
For clarification we number all four claims in our decision.
3The record reflects that prior to complainant's EEO contact in November
1999, complainant prepared a memorandum for an EEO official dated October
8, 1999. Therein, complainant stated that he wanted to �file a grievance�
regarding his performance rating, as he felt discriminated against when
he had received a response on this matter from an agency manager.