01a03158
08-01-2000
Neil B. Trammell, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Neil B. Trammell v. Department of Defense (Defense Logistics Agency)
01A03158
August 1, 2000
.
Neil B. Trammell,
Complainant,
v.
William S. Cohen,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 01A03158
Agency No. JQ-00-026
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dated February 4, 2000, dismissing 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.<1> In his complaint,
complainant alleged that he was subjected to discrimination on the bases
of sex (male), race (White), and in reprisal for prior EEO activity when:
Complainant was not selected for the position of General Trades Worker,
WG 04/05, a position he applied for on December 1, 1985;
Complainant was not selected for the position of Fabric Worker,
WG-3105-07, which he applied for on June 18, 1987;
Complainant was not selected for the position of Stock Handling Foreman,
WS-6901-02, which he applied for on May 7, 1990;
Complainant was not selected for the position of Fabric Worker, WG-05,
which he applied for on October 2, 1991;
Complainant was found not qualified for the position of Recycling Program
Specialist, GS-1101-07, which he applied for on August 11, 1992;
Complainant was subjected to other instances of discrimination regarding
non-selections and training.
The agency dismissed claims (1) - (5) pursuant to the regulation set forth
at 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.107(a)(2)), for untimely EEO Counselor
contact. Specifically, the agency stated that the non-selections cited
in claims (1) - (5) occurred between December 1985, and August, 1992,
however, complainant failed to contact an EEO Counselor until December
27, 1996, more than three years after the last alleged discriminatory
non-selection. In addition, the agency dismissed claim (6) pursuant to
the regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. � 1614.107(a)(7)),
for failure to cooperate. The agency noted that it sent a letter
to complainant on November 24, 1999, requesting clarification on the
non-selections and the denial of training mentioned in complainant's
formal complaint. Complainant responded in a letter dated December 16,
1999, in which he identified the six claims listed above. The agency
stated that it then sent complainant another letter dated December 27,
1999, requesting further clarification with regard to the other instances
of non-selections and denial of training listed in claim (6); however,
it claimed that complainant failed to respond.
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 present case, we find that the agency properly dismissed claims
(1) - (5) on the grounds of untimely EEO Counselor contact. We note
that the last alleged discriminatory non-selection occurred in August,
1992, however, complainant did not contact an EEO Counselor until
December, 1996. We find that complainant has presented no evidence
to warrant a waiver or extension of the applicable forty-five (45)
day limitation period.
With regard to claim (6), we find that the agency has properly dismissed
this claim for failure to cooperate. The record contains a copy of the
agency's December 27, 1999 letter, requesting clarification of the other
instances of non-selections and denial of training listed in claim (6).
The agency's letter is addressed to complainant's address of record and
was signed for on December 31, 1999, by a person with the same last
name as complainant. The letter informs complainant that failure to
respond within 15 days of his receipt of the request, could result in
the agency's dismissal of his complaint. We note that the Commission has
held where a certified U.S. Postal Service return receipt has been signed
by an unidentified individual at the complainant's address on a date
certain to indicate delivery of an important document, the Commission has
effectively relied upon the certified receipt to establish a presumption
of constructive receipt of the document by the complainant on that date.
See Pazinick v. U.S. Postal Service, EEOC Request No. 05930337 (September
10, 1993); Knowles v. Department of Defense, EEOC Request No. 05920956
(March 18, 1993). This presumption, however, is a rebuttable one.
A complainant may present evidence on appeal before the Commission to
rebut this presumption by demonstrating that the individual who signed
for his mail was not a family or household member of suitable age or
discretion to do so. See Baunchand v. U.S. Postal Service, EEOC Request
No. 05920389 (May 29, 1992). On appeal, complainant does not dispute
receipt of the agency's December 27, 1999 letter or present any argument
why he failed to respond. Thus, the agency's dismissal of claim (6)
was proper.
Accordingly, the agency's dismissal of complainant's complaint was proper
and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
August 1, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date 1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.