Harold Williams, Appellant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionJun 14, 1999
01983402 (E.E.O.C. Jun. 14, 1999)

01983402

06-14-1999

Harold Williams, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.


Harold Williams v. Department of the Air Force

01983402

June 14, 1999

Harold Williams, )

Appellant, )

)

v. ) Appeal No. 01983402

) Agency No. AL900980411

F. Whitten Peters, )

Acting Secretary, )

Department of the Air Force, )

Agency. )

)

DECISION

Appellant filed an appeal with this Commission from a final decision of

the agency concerning his complaint of unlawful employment discrimination,

in violation of the Age Discrimination in Employment Act of 1967, as

amended, 29 U.S.C. �621 et seq. The agency was unable to supply a copy

of a certified mail return receipt or any other material capable of

establishing the date appellant received the agency's final decision.

Accordingly, since the agency failed to submit evidence of the date

of receipt, the Commission presumes that appellant's appeal was filed

within thirty (30) days of receipt of the agency's final decision. See,

29 C.F.R. �1614.402.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed appellant's

complaint as untimely.

BACKGROUND

Appellant contacted an EEO counselor on July 29, 1997, regarding

allegations of discrimination. Specifically, appellant alleged that

he was discriminated against when on May 20, 1982 he was wrongfully

terminated from employment with the Air Force for unsatisfactory job

performance. Informal efforts to resolve appellant's concerns were

unsuccessful. Accordingly, on February 11, 1998, appellant filed a

formal complaint alleging that he was the victim of unlawful employment

discrimination on the basis of age (65).

On March 20, 1998, the agency issued a final decision dismissing

appellant's complaint as untimely. Specifically, the agency determined

that appellant's EEO contact on July 29, 1997 was beyond

the time limitations for counselor contact.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of

discrimination should be brought to the attention of the EEO 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.

Here, the record indicates that on May 20, 1982, appellant was

terminated from his employment with the U.S. Air Force during his

probationary period. Appellant did not, however, seek EEO counseling

regarding his termination until July 29, 1997, fifteen years after

his termination. Clearly, appellant's contact was beyond the time

limitation for counselor contact established by EEOC Regulations.

The record indicates that on appellant's behalf, a United States Senator

contacted this Commission regarding appellant's complaint allegations

and the federal complaints process. The record contains a copy of EEOC

correspondence dated September 24, 1996 discussing the procedures for

filing a discrimination complaint, including relevant time limitations.

Based on this correspondence from the Commission concerning the filing of

appellant's discrimination complaint, the agency determined that appellant

had knowledge of the time limitations for seeking EEO counseling as of

September 24, 1996.

Based on a thorough review of the record, we determine that the agency's

dismissal of appellant's complaint was proper. Assuming arguendo,

appellant had no knowledge of the relevant time limitations for counselor

contact prior to September 24, 1996, he still waited another 10 months

before contacting a counselor on the matter. Appellant has presented

no persuasive evidence sufficient to justify an extension of the

applicable time limit for 15 years or even for 10 months. See Baldwin

County Welcome Center v. Brown, 466 U.S. 147, 151 (1984) (per curiam)

("One who fails to act diligently cannot invoke equitable principles to

excuse lack of diligence"); Rys v. U.S. Postal Service, 886 F.2d 443,

446 (1st Cir. 1989) ("to find succor in equity a Title VII plaintiff

must have diligently pursued her claim").

CONCLUSION

Accordingly the agency's decision dismissing appellant's complaint as

untimely is hereby AFFIRMED for the reasons set forth herein.

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 14, 1999

____________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations