Charles E. Washington, Complainant,v.Spencer Abraham, Secretary, Department of Energy, Agency.

Equal Employment Opportunity CommissionSep 18, 2002
01A13318_r (E.E.O.C. Sep. 18, 2002)

01A13318_r

09-18-2002

Charles E. Washington, Complainant, v. Spencer Abraham, Secretary, Department of Energy, Agency.


Charles E. Washington v. Department of Energy

01A13318

September 18, 2002

.

Charles E. Washington,

Complainant,

v.

Spencer Abraham,

Secretary,

Department of Energy,

Agency.

Appeal No. 01A13318

Agency No. 00(53)HQ/CN

DECISION

On April 26, 2000, complainant filed a formal complaint alleging

discrimination in violation of Title VII of the Civil Rights Act of 1964

(Title VII), as amended, 42 U.S.C. � 2000e et seq.

In his complaint, complainant claimed he was subjected to discrimination

on the bases of race and in reprisal for prior protected activity when

on December 3, 1999, complainant learned that he was not selected

for a Deputy Director position (ETR 98-0-045) in the Office of Counter

Intelligence.

The agency dismissed complainant's complaint on the grounds of untimely

EEO Counselor contact and on the grounds that the issues raised

in the formal complaint were the subject of a U.S. District Court

supervised settlement.<1> The agency argued that complainant should

have suspected the alleged discrimination well prior to his December 3,

1999 EEO Counselor contact even while he was on extended sick leave,

from mid-January 1999 to November 1999. The agency stated that the record

shows that while complainant was on sick leave, he contacted the Office of

Executive Personnel Services to determine the status of his application

for the subject position. The agency also stated that the record shows

that complainant visited the agency on March 17, 1999 and April 14, 1999,

to meet with the Deputy Assistant Secretary for International Affairs;

on May 5, 1999, complainant participated in a demonstration in front of

the agency building; and on June 2, 1999, complainant attended a Blacks

in Government meeting. In addition, the agency argued that complainant

should have been aware of the nonselection no later than September 8,

1999, when he signed the settlement agreement that is referenced in

footnote 1.

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 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 shows that on November 30, 1998, the agency issued

a job announcement for the position of Deputy Director, Office of

Counterintelligence, ES-340 under vacancy announcement ETR-98-ES-10-045.

The record further shows that selection for the position was made on

March 8, 1999, and the selectee began serving in the position, effective

July 4, 1999.

Here, complainant contends that he did not suspect discrimination until

after he returned to work in November 1999. After a careful review of

the record, we find that complainant reasonably should have suspected

discrimination long prior to his initial EEO Counselor contact. We note

that in the record complainant stated that he had no recollection of

either how or by whom he learned of the nonselection. Complainant has

not presented a persuasive argument or evidence sufficient to warrant an

extension of time limit for initiating EEO contact. Thus, we find that

the agency properly dismissed complainant's complaint for untimely EEO

Counselor contact. Accordingly, the agency's final decision dismissing

complainant's complaint is AFFIRMED.

Because we affirm the agency's dismissal for the reason stated herein,

we find it unnecessary to

address the agency's alternative grounds for dismissal.

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

September 18, 2002

__________________

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

______________________________

1Complainant filed a civil action on other matters on August 3, 1998,

which resulted in a settlement agreement. The settlement agreement

entered into in resolution of the civil action, dated September 8, 1999,

provided that complainant waives all claims against the agency �up to

the date of the settlement, including all claims of discrimination and

retaliation that have been, or could have been made in this action.�