01992895
02-01-2000
Fred T. Forrest, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Fred T. Forrest, )
Complainant, )
)
v. ) Appeal No. 01992895
) Agency No. 98-4207
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
____________________________________)
DECISION
The Commission finds that the agency's decision dated February 12, 1999
dismissing complainant's complaint for untimely EEO Counselor contact is
proper pursuant to the regulation set forth at 64 Fed. Reg. 37,644, 37656
(to be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(2)).<1>
Complainant alleged that he was discriminated on the bases of race
and disability (leg amputee) when he was denied administrative leave
(including future leave and retroactive administrative leave in place
of used sick and annual leave) for prosthesis training commencing
from the time complainant became an employee with the agency in 1974.
The Commission finds that complainant should have reasonably suspected
discrimination upon receipt of a memorandum dated April 21, 1997
concerning administrative leave for employees who are visually impaired
(guide dog training). Complainant admits he was aware of the April 21,
1997 memorandum in May 1997. Complainant argues that the April 21,
1997 memorandum justifies granting administrative leave to complainant.
The Commission finds that complainant did not initially contact an EEO
Counselor with the intent of commencing the EEO process until February 23,
1998, which is beyond the 45 day time limit set forth in � 1614.105(a)(1).
Complainant may be arguing that he initially contacted an EEO Counselor on
September 2, 1997. Complainant did write a memorandum dated September 2,
1997 to the EEO Officer requesting the administrative leave at issue in
this complaint. Even if September 2, 1997 were the initial EEO contact
date, such contact is still more than 45 days after complainant should
have reasonably suspected discrimination in May 1997.
Alternatively, if we examine when complainant was actually informed that
his request for administrative leave was denied, we still find that
complainant failed to timely contact an EEO Counselor. By memorandum
dated September 29, 1997 the agency denied complainant's September 2,
1997 request for administrative leave. By memorandum dated November
1, 1997 complainant "appealed" the September 29, 1997 decision to the
District Director. Thus, we find that complainant should have reasonably
suspected that the rejection of his September 2, 1997 leave request was
discriminatory by, at the latest, November 1, 1997. Complainant's contact
of an EEO Counselor on February 23, 1998, was more than 45 days after
November 1, 1997, and is therefore untimely.
Therefore, no matter whether the complaint as viewed as claiming that
the April 21, 1997 memorandum was discriminatory or the September 29,
1997 denial of leave was discriminatory, we find that complainant failed
to timely contact an EEO Counselor.
The agency's decision dismissing the complaint 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:
February 1, 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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________________ _________________________ Date
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.