01A32862
07-10-2003
Jesse L. Stufflebeam, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Jesse L. Stufflebeam v. Social Security Administration
01A32862
July 10, 2003
.
Jesse L. Stufflebeam,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A32862
Agency No. 03-0138-SSA
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision, issued on March 27, 2003, pertaining to his complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
On October 7, 2002, complainant contacted the EEO office claiming that
he was discriminated against when he was not selected to participate
in the Office of Quality Assurance Career Development Program because
he did not make the best-qualified list. Informal efforts to resolve
complainant's concerns were unsuccessful. Subsequently, complainant
filed a formal complaint based on age, disability, and sex.
The agency issued a decision dismissing the complaint on the grounds
of untimely counselor contact. The agency noted that complainant
was notified of his non-selection in March 2002, and thereafter he
requested copies of the managers' recommendations. When management
informed complainant that they could not provide the recommendations,
complainant filed a grievance on April 11, 2002. The agency reasoned
that complainant should have requested counseling in June 2002, but he
did not do so until October 7, 2002.
On appeal, complainant argues that he �had no reason to believe that
any discrimination had occurred� until after an audit of the selection
process was done by the union. He did not learn of the completed audit
until September 27, 2002, after which time he contacted the EEO office.
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 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.
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.
In the instant case, the Commission finds that complainant reasonably
suspected, or should have suspected, discrimination more than forty-five
days before his EEO Counselor contact in October 2002. The record
shows that as early as February 21, 2002 complainant requested a copy
of his supervisors' and directors' evaluations and notes regarding his
application for the program. The Commission, however, has found that
since the limitation period for contacting an EEO Counselor is triggered
by the reasonable suspicion standard, waiting until one has �supporting
facts� or �proof� of discrimination before initiating a complaint can
result in untimely counselor contact. See Bracken v. United States Postal
Service, Request No. 05900065 (March 29, 1990). Further, complainant
acknowledges that he filed a grievance on the matter prior to contacting
the EEO office. The Commission has held that the use of the grievance
process or other internal appeal process does not toll the time limit for
contacting an EEO Counselor. See Speed v. United States Postal Service,
Request No. 05921093 (June 24, 1993). Therefore, we do not find that
complainant has provided sufficient reason for tolling or extending the
forty-five day time limitation.
Accordingly the agency's decision to dismiss the complaint was proper
and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 10, 2003
__________________
Date