01a43183
10-29-2004
Charly L. Abrew, Complainant, v. Stephen A. Perry, Administrator, General Services Administration Agency.
Charly L. Abrew v. General Services Administration
01A43183
10/29/2004
.
Charly L. Abrew,
Complainant,
v.
Stephen A. Perry,
Administrator,
General Services Administration
Agency.
Appeal No. 01A43183
Agency No. 03R#FPSCA01
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated March 5, 2004, dismissing his formal complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
According to the agency's EEO Counselor's Report and its acceptance
letter (dated August 5, 2003), complainant initiated EEO Counselor
contact on March 17, 2003. Informal efforts to resolve his concerns
were unsuccessful.
In his formal complaint dated July 14, 2003, complainant alleged that
he was subjected to discrimination on the bases of race and in reprisal
for prior EEO activity.<1>
By letter dated August 5, 2003, the agency accepted the following claim
for investigation:
[Was complainant] discriminated against based on race (Hispanic) and
reprisal (complaint with former employer, the National Institutes of
Health [NIH]) when [he] learned that [his] offer of employment with
the [agency] as a GS-0083-09 Police Officer, in Baltimore, Maryland,
was rescinded after the agency received information from [his] former
supervisor at the [NIH]?
In its final decision dated March 5, 2004, the agency dismissed
complainant's complaint on the grounds of untimely EEO Counselor contact.
The agency found that complainant made reference to four dates on which
the agency allegedly discriminated against him: September 20, 2002;
November 12, 2002; January 8, 2003; and January 29, 2003. The agency
stated that while it received a letter from complainant on March 17,
2003, complainant did not identify a discriminatory basis for his claim
until April 23, 2003. Therefore, the agency stated that complainant
failed to initiate EEO Counselor contact within forty-five days of the
alleged discriminatory incidents.
On appeal, complainant, through his attorney, states that the agency
improperly dismissed his complaint. Complainant asserts that he
became aware on January 29, 2003, that the reason the agency rescinded
its employment offer was in reprisal for his prior EEO activity.
Specifically, complainant asserts that on January 29, 2003, an EEO
Counselor at NIH, informed him that an agency official at NIH (A1)
provided information to agency investigators regarding complainant's
support of an NIH employee's sexual harassment complaint. Furthermore,
complainant asserts that he wrote a letter to the agency dated March 3,
2003, regarding the alleged discrimination, and that the agency received
the letter on March 17, 2003. Complainant asserts that he therefore
timely initiated EEO Counselor contact.
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 she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The Commission finds that complainant reasonably suspected discrimination
on or about September 20, 2002. The record contains a copy of a letter
from an agency human resources specialist to complainant dated August 28,
2002. Therein, the human resource specialist states that complainant has
been selected for the position of Police Officer, GS-0083-09 and that he
should report to duty on September 23, 2002. The record also contains a
letter from another human resources specialist (HR1) to complainant dated
September 20, 2002. Therein, HR1 states that the agency's employment
offer has been rescinded and that complainant should not report to duty
on September 23, 2002.
On appeal, complainant asserts that he did not develop a reasonable
suspicion of unlawful employment discrimination until January 29, 2003,
when an EEO Counselor at NIH informed him that A1 called the agency
regarding complainant's involvement in a sexual harassment claim.
However, the record does not support this assertion. In a signed
affidavit, complainant states that on September 20, 2002, he received
a letter from HR1 that his employment offer was being rescinded.
Complainant states that he tried to reach HR1 through e-mail messages
which she did not return. Complainant further states that when he
eventually reached HR1, she would not provide him with additional
information. In addition, complainant states �[a]t this point,
I suspected that NIH did something to affect my employment with the
[agency]. I believe that [A1] took his own initiative to contact [the
agency] and provide a negative recommendation...I believe they took
reprisal against me for engaging in prior EEO complaint activity while
I was at NIH.�
The record also contains an e-mail from complainant to HR1 dated October
3, 2002. Therein, complainant requests information from HR1, pursuant
to the Freedom of Information Act, pertaining to the investigation in
regard to complainant's employment offer. Based on these circumstances,
the Commission finds that on or about September 20, 2002, complainant
suspected discrimination and/or retaliation regarding the agency's
decision to rescind his job offer. Assuming arguendo, that complainant
initiated EEO Counselor contact via letter dated March 3, 2003, and
received by the agency on March 17, 2003, as asserted by complainant on
appeal, this initial contact in March 2003, occurred more than forty-five
days from when complainant reasonably should have suspected discrimination
on or about September 20, 2002.<2>
Accordingly, the Commission finds that the agency properly dismissed
complainant's complaint for untimely EEO Counselor contact. The agency's
dismissal on these grounds is AFFIRMED.<3>
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
10/29/2004
Date
1Complainant lists sex and reprisal as the
bases of discrimination in his formal complaint; however, on appeal,
he states that the bases for his discrimination complaint are race
and reprisal.
2The Commission notes that the record also contains an EEO Counselor's
Report from the NIH. Therein, an EEO Counselor with the NIH states that
complainant initiated EEO Counselor contact with the NIH on November
15, 2002, regarding a settlement breach claim. The record reflects
that complainant and the NIH entered into a settlement agreement that
provided in pertinent part that the NIH agreed to provide a neutral
reference on complainant as long as he directed all references to the
personnel office. However, the Commission will not address this claim;
since, it is not presently before the Commission.
3Because we affirm the agency's final decision for the reason stated
herein, we find it unnecessary to address the agency's alternate grounds
for dismissal.