01993074
03-15-2000
Eddie A. Curtis, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Eddie A. Curtis, )
Complainant, )
)
v. )
) Appeal No. 01993074
Togo D. West, Jr., ) Agency No. 98-3248
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On March 4, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) dismissing his complaint for untimely
counselor contact.<1> The appeal is accepted by the Commission in
accordance with 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405).
On August 18, 1998, complainant contacted the EEO office alleging that he
was discriminated against on the bases of race (Black), color (black),
sex (male), national origin (African-American), age (DOB: 9/1/51), and
reprisal (previous termination<2>) when on or about December 19, 1997:
1) he was notified that he was not hired for the position of Computer
Specialist, GS-334-11T12/12, Vacancy Announcement 98-S-9;
2) he was notified that he was not hired for the position of Computer
Specialist, GS-334-7T9/9, Vacancy Announcement Number 98-S-14; and
3) he was notified that he was not hired for the position of Information
Security Specialist, GS-080-9T11/11, Vacancy Announcement Number 98-S-18.
Complainant filed a formal complaint on October 15, 1998. The agency
issued a FAD dismissing complainant's complaint for untimely counselor
contact. The FAD indicated that on December 19, 1997, the agency's
Cincinnati office notified complainant that he was not selected for
the above positions. On December 30, 1997, complainant wrote the
agency for an explanation. On January 8, 1998, the agency informed
complainant that it was �unable to access [his] qualifications due to the
incomplete information submitted on [his] application.�<3> The letter
further identified other problem areas and explained why complainant's
application was considered incomplete. A brochure entitled �Applying
for a Federal Job� was also provided to complainant.
On appeal, complainant stated that he did not contact a counselor earlier
because he �was not aware of this being a case of discrimination, nor was
[he] aware that the January correspondence [he] received . . . was a
final decision regarding [his] applications for employment.� Furthermore,
he maintained that �I felt I was more than qualified for the positions
and I was awaiting answers to questions I raised in my correspondence to
them.� In an October 9, 1998 letter, complainant wrote that �the alleged
missing information was, in fact, contained in the application packet.�
Finally, in a March 3, 1999 letter, complainant, for the first time,
argued that �[a]t no time during the administrative correspondence did
[the agency] notify [him] of a time limit.�
64 Fed. Reg. 37,644, 37,656 (1999) (to be codified as 29 C.F.R. �
1614.107(a)(2)) provides, in pertinent part, that the agency shall dismiss
a complaint or a portion of a complaint that fails to comply with the
applicable time limits contained in � 1614.105. 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified as 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. Finally, our 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.
29 C.F.R. � 1614.105(a)(2).
We find that complainant sought EEO counseling in an untimely manner.
After receiving the agency's letter of January 16, 1998, complainant was
provided with the agency's reasons for not selecting him. A review of the
letter does not support complainant's contention that he did not realize
that the agency had made a final decision regarding his nonselection.
There is also no evidence that, prior to his seeking EEO counseling,
the parties ever communicated again about his nonselections. Thus,
we find no persuasive evidence that complainant only suspected that he
was being discriminated against sometime during the 45-day period that
preceded his August 18, 1998 counselor contact. We note in this regard
complainant's claims that, contrary to the agency's assertions in its
January 1998 letter, his application packet already contained all of
the information that the agency claimed was missing; and that he felt
he was more than qualified for the positions.
Based on these facts, complainant should reasonably have suspected
discrimination.
Furthermore, we are not persuaded by complainant's contention that he was
not aware of the time limitation period for contacting EEO counselors.
Complainant's employment application indicates that he was employed
by the Federal government from March 1988 until January 1997, when he
was terminated. Complainant also indicated that he was at the GS-12
grade level at the time of his termination. Therefore, we find that it
is reasonable to conclude that complaint was aware of the EEO process
and its procedures.
Accordingly, the agency's decision to dismiss complainant's complaint
for untimely counselor contact was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
March 15, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
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
Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2Complainant was terminated from Federal employment on January 21,
1997.
3For example, complainant did not indicate why he was terminated.
He merely stated that he would explain during the interview.