01984163_r
06-16-1999
Edward M. McGlynn, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Edward M. McGlynn, )
Appellant, )
)
v. ) Appeal No. 01984163
) Agency No. AOEWFO9710H0750
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
On April 29, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on April 4, 1998,
pertaining to his complaint of unlawful employment discrimination in
violation of �501 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. �791 et seq. In his complaint, appellant alleged that he was
subjected to discrimination on the bases of mental disability (Post
Traumatic Stress Disorder) and in reprisal for prior EEO activity when
on December 13, 1995, appellant was terminated during his probationary
period of employment with the Deputy Chief of Staff for Personnel,
U.S. Army, Pacific.
The agency dismissed appellant's allegation pursuant to EEOC Regulation
29 C.F.R. �1614.107(b), for failure to timely initiate EEO contact.
The agency found that appellant filed an informal complaint on December
14, 1995, received a Notice of Right to File a Formal Complaint on March
13, 1996, but then re-initiated counseling on October 8, 1997, without
filing a formal complaint from the March 13, 1996 notice of right to file.
The agency found that appellant's complaint initiated on December 14,
1995, was canceled due to lack of due diligence, and that therefore,
appellant's subsequent complaint on the same issue, raised on October
8, 1997, was untimely. Alternatively, the agency dismissed appellant's
complaint pursuant to EEOC Regulation 29 C.F.R. �1614.107(d), for raising
the same matter in a prior Merit Systems Protection Board appeal on
January 6, 1996.
On appeal, appellant failed to address the procedural grounds for
dismissal of his complaint.
The record includes a copy of a Notice of Right to File a Formal
Complaint, signed as received by appellant on March 13, 1996. The notice
referred to appellant's allegation that he was discriminated against
based on mental disability when appellant was terminated from his
Military Personnel Management Specialist position on December 14, 1995,
and gave appellant fifteen (15) days to file a formal complaint on
the matter. The record also contains a letter dated April 11, 1996,
which advised appellant that his discrimination complaint, Agency
Number AOEWPI960160110, raised on December 14, 1995, was closed due to
appellant's failure to file a formal complaint. Further, the record
includes the Counselor's Report, which listed appellant's date of initial
counselor contact as October 8, 1997.
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 Ball v. USPS,
EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period
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 Commission finds that appellant had a reasonable suspicion
of discrimination on December 13, 1995, when she was terminated.
Although appellant contacted a counselor on December 14, 1995, appellant
abandoned this prior EEO contact. See Felton v. National Aeronautics and
Space Administration, EEOC Appeal No. 01982851 (March 16, 1999) (first
contact abandoned where complainant contacted a counselor and received
notice of right to file a formal complaint, then re-initiated contact
and filed formal complaint several months later); Flassig v. Department
of Treasury, EEOC Appeal No. 01975786 (May 5, 1998) (Contact abandoned
when complainant waited two years after EEO contact to file a formal
complaint). Consequently, appellant's initial EEO contact was untimely
because it occurred more than forty-five days after appellant acquired
a reasonable suspicion of discrimination.<1>
CONCLUSION
Accordingly, the agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
June 16, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1Since we are affirming the agency's dismissal of appellant's complaint
on the grounds of untimely counselor contact, we will not address the
agency's alternative grounds for dismissal, i.e., that the matter was
previously raised with the Merit Systems Protection Board.