0120122081
08-03-2012
Jon W. Jung, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Jon W. Jung,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120122081
Agency No. IRSCC-12-0117-F
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 27, 2012, dismissing a formal 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. Upon review, the Commission finds that Complainant's formal complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds of untimely EEO Counselor contact.
BACKGROUND
During the period at issue, Complainant worked as an Office Manager at an Agency facility in Cincinnati, Ohio. On January 20, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of sex when:
1. He did not receive a performance-based monetary award between fiscal Year 2006 (FY06) and FY10;
2. He did not receive a mid-year review between FY 08 and FY 10; and
3. On or about July 19, 2011, management disclosed his performance evaluation rating.
In the instant final decision, the Agency dismissed the formal complaint on the grounds of untimely EEO Counselor contact. The Agency found that Complainant did not contact an EEO Counselor on his claims until November 30, 2011, beyond the 45-day time limit set by the regulations.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that on September 16, 2011, he sought help to remedy the situation through an Associate Area Counsel, (F&M) for the IRS. Complainant argues further that only after that September 16, 2011 request was denied on November 21, 2011, did he realize that he was the victim of discrimination, and that he then timely contacted the EEO Counselor on November 30, 2111.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(2) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) calendar days of an alleged discriminatory event, the effective date of an alleged discriminatory personnel action, or the date that the aggrieved person knew or reasonably should have known of the discriminatory event or personnel action. The Commission had adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the 45-day limitation period is triggered.. See Ball v. USPS, EEOC Request No. 05880247 (July 6, 1989). Thus, the limitations period is not triggered until a complainant should have reasonably suspected discrimination, but before all the facts that would have supported a charge of discrimination had become apparent.
The record discloses that Complainant became aware of the alleged discrimination on September 16, 2011, but Complainant did not initiate contact with an EEO Counselor until November 30, 2011, which is beyond the forty-five (45) day limitation period. We have carefully considered Complainant's appellate arguments. However, we nevertheless determine that, on appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
CONCLUSION
The Agency's final decision dismissing Complainant's formal complaint for the reason stated herein is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
August 3, 2012
__________________
Date
2
0120122081
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122081