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