John W. Price, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionApr 6, 1999
01982971_r (E.E.O.C. Apr. 6, 1999)

01982971_r

04-06-1999

John W. Price, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.


John W. Price, )

Appellant, )

)

v. ) Appeal No. 01982971

) Agency No. AOEWFO9709H0650

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

______________________________)

DECISION

On February 26, 1998, appellant filed an appeal with this Commission

from a final agency decision (FAD) dated January 16, 1998, pertaining

to his complaint of unlawful employment discrimination in violation of

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e

et seq., and �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 race (African-American),

physical disability (carpel tunnel syndrome), and mental disability

(memory loss) when:

In 1995-1996, appellant was not selected for six (6) of nine (9)

positions for which he applied; and

On August 21, 1997, appellant was separated from employment during

his probation.

Allegation (2) was accepted for investigation. The agency dismissed

allegation (1) pursuant to EEOC Regulation 29 C.F.R. �1614.107(b)

for failure to timely contact an EEO Counselor as required by 29

C.F.R. �1614.105(a)(1), or alternatively, pursuant to EEOC Regulation

29 C.F.R. �1614.107(a), for failure to state a claim. Specifically,

the agency found that appellant's most recent non-selection occurred in

September 1996, but appellant did not contact a counselor until 330 days

later, on September 12, 1997. Further, the agency found that appellant

was not aggrieved, because he was deemed not qualified for the openings

that he did not receive.

The record includes a copy of vacancy announcements and application

forms from appellant, but no letters informing appellant of his

non-selection.<1> Nonetheless, appellant does not dispute the dates on

which the agency claims appellant became aware of his non-selection.

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.

After a thorough review of the record, the Commission finds that the

agency properly dismissed appellant's complaint as untimely. Appellant

did not contact a counselor until almost one year after his most recent

non-selection. Further, appellant failed to identify any extenuating

circumstances to explain his delay. Accordingly, the agency's decision

to dismiss allegation (1) for untimely counselor contact is AFFIRMED.

Since we are affirming the agency's dismissal of allegation (1) on the

grounds of untimely counselor contact, we will not address the agency's

alternative grounds for dismissal, i.e., that appellant failed to state

a claim.

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:

April 6, 1999

____________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations 1The only application forms included

in the file are for the (3) three positions that appellant did

receive.