01a55257
12-02-2005
Donald J. Permoda, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Donald J. Permoda v. Department of Transportation
01A55257
December 2, 2005
.
Donald J. Permoda,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A55257
Agency No. DOT-2005-19639-FAA-04
DECISION
Upon review, the Commission finds that the agency's decision dated
June 27, 2005, dismissing complainant's complaint due to untimely EEO
Counselor contact is proper pursuant to 29 C.F.R. � 1614.107(a)(2).
In its decision, the agency defined the complaint as alleging
that complainant was discriminated against based on age (57) and in
reprisal for prior EEO activity when he was subjected to a hostile work
environment and when he was given improper and inadequate training.
Complainant has not challenged the agency's framing of the complaint.
The agency stated that the alleged incidents occurred in or prior to
September 2004, since complainant had not been at work since that time.
Thus, the agency indicated that complainant's EEO Counselor contact with
regard to the alleged incidents on April 11, 2005, was beyond the 45-day
time limit set by the regulations. On appeal, complainant contends
that on February 27, 2005, during his therapy treatment sessions,
he became aware of the direct connection between his elevated blood
pressure and other illness and his working environment at the agency.
He also contends that on March 30, 2005, he timely contacted an EEO
Counselor by calling counselors and leaving a message about the matters.
The Commission has adopted a �reasonable suspicion� standard (as opposed
to a �supportive facts� standard) to determine when the limitation period
is triggered under the EEOC Regulations. See 29 C.F.R. � 1614.105(a)(2);
Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6,
1988). Thus, the limitations period is not triggered until a complainant
reasonably should have suspected discrimination, but before all the facts
that would support a charge of discrimination have become apparent.
In this case, complainant, an Air Traffic Controller, listed numerous
incidents in his complaint which allegedly occurred from 2002 to 2004,
but nothing after September 2004. After a review of the record,
the Commission finds that complainant knew or reasonably should have
suspected discrimination at the time of the alleged incidents, which is
no later than September 2004. Even if we assume for the sake of argument
that complainant contacted an EEO Counselor on March 30, 2005, we find
that complainant's EEO Counselor contact was beyond the 45-day time limit.
Accordingly, the agency's decision dismissing the complaint is AFFIRMED.
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
December 2, 2005
__________________
Date