01983842
06-07-1999
Charles A. James, Appellant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Charles A. James v. Department of Justice
01983842
June 7, 1999
Charles A. James, )
Appellant, )
)
v. ) Appeal No. 01983842
) Agency No. I970205
Janet Reno, )
Attorney General, )
Department of Justice, )
Agency. )
______________________________)
DECISION
On April 15, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD), dated March 27, 1998, pertaining to
his complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.
The appeal is accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for untimely EEO Counselor contact, pursuant to EEOC Regulation
29 C.F.R. �1614.107(b).
BACKGROUND
In his formal complaint, dated August 1, 1997, appellant alleged that
he was subjected to discrimination on the basis of race (Black) when
management officials at the Immigration and Naturalization Service did
not address the problem after appellant told them that he had received
a death threat letter.
According to the agency, on April 26, 1996, appellant informed the
Assistant District Director that he had received a letter which threatened
his life. Appellant, however, did not contact an EEO counselor about
the agency's alleged inaction until February 10, 1997, a period of 10
months after contacting the Assistant District Director. The agency,
therefore, dismissed the claim for untimely counselor contact.
According to the appellant, he did not become aware of the death
threat letter until January, 1997. The record reveals, however,
that appellant knew of and reported the letter on March 14, 1995.
Appellant also contacted various other management officials about the
death threat letter. The record reveals, further, that appellant wrote a
June 25, 1996 memorandum to the Office of the Assistant District Director
complaining that management had done nothing to address his concerns.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO Counselor within 45 days of
the date of the matter alleged to be discriminatory or within 45 days of
the effective date of the personnel action. The Commission has adopted
a "reasonable suspicion" standard (as opposed to a "supportive facts"
standard) for determining whether contact with an EEO Counselor is timely.
Ball v. U.S. Postal Service, EEOC Request No. 05880247 (July 6, 1988).
Under this standard, the regulatory limitations period "is not triggered
until complainant reasonably suspects discrimination, but before all
the facts that would support a charge of discrimination have become
apparent." Bracken v. U.S. Postal Service, EEOC Request No. 05900065
(March 29, 1990). In other words, the individual has 45 days from the
date he reasonably suspected discrimination to initiate counseling.
In this case, appellant knew that management was not responding to his
complaints about the death threat letter, when he stated words to that
effect in his June 25, 1996 memorandum. Appellant should have reasonably
suspected discrimination at that time. Appellant did not seek EEO
Counseling, however, until eight months later. The Commission finds,
therefore, that appellant's EEO Counselor contact was untimely.
CONCLUSION
Accordingly, the agency's decision dismissing appellant's complaint for
failure to state a claim is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
June 7, 1999 ________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations