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.�