Charles E. Amos, Appellant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, (National Guard Bureau), Agency.

Equal Employment Opportunity CommissionApr 7, 1999
01983476 (E.E.O.C. Apr. 7, 1999)

01983476

04-07-1999

Charles E. Amos, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, (National Guard Bureau), Agency.


Charles E. Amos v. Department of the Air Force

01983476

April 7, 1999

Charles E. Amos, )

Appellant, )

)

v. ) Appeal No. 01983476

) Agency No. MO606TXFO496RO

F. Whitten Peters, )

Acting Secretary, )

Department of the Air Force, )

(National Guard Bureau), )

Agency. )

)

DECISION

Appellant filed an appeal with this Commission from a final decision of

the agency concerning 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 final agency decision was received by

appellant on July 2, 1996. The appeal was postmarked September 5, 1996.

There is no indication that the final agency decision provided appeal

rights to appellant. Accordingly, the appeal will be deemed timely

(see 29 C.F.R. �1614.402(a)), and 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.

BACKGROUND

Appellant contacted an EEO counselor on July 2, 1996, regarding

allegations of discrimination. Specifically, appellant alleged that

he was discriminated against when (1) in August 1993 negative comments

were put in appellant's Official Personnel Record (OPR) and (2) in June

1995, he learned that he was not going to receive the Army Achievement

medal for outstanding performance of duty. Informal efforts to resolve

appellant's concerns were unsuccessful. Accordingly, on July 2, 1996,

appellant filed a formal complaint alleging that he was the victim of

unlawful employment discrimination on the bases of race (black) and

reprisal (prior EEO activity).

On July 2, 1996, the agency issued a final decision (FAD) dismissing

allegation (1) of appellant's complaint on the grounds that it

concerned the same matter that had already been decided by the agency.

Specifically, the agency determined appellant's OPR allegation had been

the subject of a prior compliant filed by appellant and for which a

settlement agreement had been reached. The FAD dismissed allegation (2)

of appellant's complaint as untimely. The agency found that appellant

learned in June 1995 that he would not receive the achievement award,

but did not seek counseling regarding the matter until July 2, 1996.

The agency determined that appellant's EEO contact was beyond the time

limitations established by EEOC Regulations.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall

dismiss a complaint or a portion of a complaint that states the same claim

that is pending before or has been decided by the agency or Commission.

A review of the record indicates that on June 14, 1996 appellant signed a

settlement agreement with the agency in which he agreed to withdraw three

prior complaints involving, inter alia, negative comments in his 1993 OPR.

The Commission determines that allegation (1) of appellant's complaint

concerns allegations of discrimination regarding negative comments in

his 1993 OPR, which was the subject of a settlement agreement entered

into by the parties on June 14, 1996. We find further that the agency

properly dismissed allegation (1) pursuant to 29 C.F.R. �1614.107(a).

EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of

discrimination should be brought to the attention of the EEO 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 Ball v. USPS, EEOC Request No. 05880247

(July 6, 1988). Thus, the limitations period 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.

The record indicates that in June 1995 appellant learned that he would not

receive the award for outstanding performance. However, appellant did not

seek counseling concerning his allegations of discrimination until July 2,

1996, one year later. Appellant offers no explanation for his failure

to timely seek counseling regarding allegation (2). We find, therefore,

that appellant has failed to provide evidence, persuasive or otherwise,

sufficient to justify an extension of the applicable time limit for an

entire year. See Baldwin County Welcome Center v. Brown, 466 U.S. 147,

151 (1984) (per curiam) ("One who fails to act diligently cannot invoke

equitable principles to excuse lack of diligence"); Rys v. U.S. Postal

Service, 886 F.2d 443, 446 (1st Cir. 1989) ("to find succor in equity

a Title VII plaintiff must have diligently pursued her claim").

CONCLUSION

Accordingly, the agency's decision dismissing appellant's complaint is

hereby AFFIRMED for the reasons set forth herein.

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. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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:

April 7, 1999

____________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations