01a21737_r
03-19-2003
Blaine G. Barkley, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Blaine G. Barkley v. Department of the Treasury
01A21737
March 19, 2003
.
Blaine G. Barkley,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A21737
Agency No. 02-4009
DECISION
Upon review, the Commission finds that the agency's decision dated
December 26, 2001, dismissing complainant's complaint due to untimely
EEO Counselor contact is proper pursuant to 29 C.F.R. � 1614.107(a)(2).
The agency defined the complaint as alleging discrimination based on
sex (male) and age (DOB: 1/5/1947) when: on or about February 12, 2001,
complainant's manager advised him that no GS-14 manager position was
going to be created in the Special Enforcement Program (SEP); on March
1, 2001, he was permanently assigned a GS-13 position in Planning and
Special Programs (PSP), ending his temporary promotion to GS-14; on
March 8, 2001, his position in PSP was abolished; and in March 2001, he
was excluded from attending informational meetings while he was in PSP.
Complainant has not challenged the agency's framing of the complaint.
The record indicates that complainant contacted an EEO Counselor with
regard to his complaint on June 8, 2001, which was beyond the 45-day
time limit set by the regulations.
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. The record indicates that at the time of the alleged
incidents, complainant had been detailed to a temporary GS-14 manager
position in PSP for 16 months from his permanent GS-13 position in SEP.
Complainant indicated in his formal complaint that when he was informed
that his detail would be ended, he talked to his manager and was told
that they would not create a permanent GS-14 manager position in PSP.
Based on this information, including a Personnel Officer's assurance
that complainant had pay retention as GS-14 indefinitely, as long as
he had been in that position more than a year and that position was not
abolished, complainant informed his manager on February 13, 2001, that
he decided to stay permanently in PSP, instead of going back to SEP.
Based on the foregoing, the Commission finds that complainant knew
or reasonably should have suspected discrimination on March 8, 2001,
when his manager informed him that his position was abolished, and if
he wanted to stay in PSP, he would have to apply for the position and
compete against grade 12s for the position.
On appeal, complainant contends that on May 2, 2001, he became aware
of discrimination after he had a meeting with the head of the local EEO
office to determine if he had a basis for an EEO action concerning the
above incidents. It is noted that complainant admits that he did not
intend to pursue an EEO process at this meeting. However, complainant
does not provide any explanation as to what incident prompted him to
contact the EEO office on May 2, 2001. Furthermore, complainant indicated
in his complaint that after the March 8, 2001 incident, he discussed
the alleged matter with other managers and sought more information
about the same matter. Based on the foregoing, the Commission finds
that complainant fails to present adequate justification to warrant an
extension of the applicable time limit for contacting an EEO Counselor.
Accordingly, the agency's decision 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 (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 19, 2003
__________________
Date