0120110355
01-13-2011
Omar Ulffe, Complainant, v. Gary Locke, Secretary, Department of Commerce, (Bureau of the Census), Agency.
Omar Ulffe,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce,
(Bureau of the Census),
Agency.
Appeal No. 0120110355
Agency No. 10-63-01174D
DECISION
Upon review, we find that the Agency's decision dated September 8, 2010,
dismissing Complainant's complaint due to untimely EEO Counselor contact
is proper pursuant to 29 C.F.R. �1614.107(a)(2). The Agency's decision
dismissing the complaint is AFFIRMED.
BACKGROUND
The record indicates that Complainant, a Partnership Specialist,
contacted an EEO Counselor on April 26, 2010, regarding his complaint.
Unable to resolve the matter informally, Complainant filed his complaint,
dated May 15, 2010, alleging discrimination based on race (unspecified),
national origin (not specified), and in retaliation when: (1) around May
of 2009, he was promised a promotion to Team Lead but was not promoted;
(2) he was told that he would receive an increase in grade and salary but
did not receive it or the performance rating he expected on October 27,
2009; (3) in December 2009, he was pressured to attend a meeting; and,
(4) on February18, 2010, an Agency official called/asked him regarding
a meeting where he left early on a previous day.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of the EEO Counselor within
45 days of the alleged discriminatory event, or the effective date of
an alleged discriminatory personnel action.
The record indicates that the alleged incidents in the complaint occurred
on or prior to February 18, 2010. Complainant however did not contact
an EEO Counselor with regard to the alleged incidents until April
26, 2010, which was beyond 45-day time limit set by the regulations.
On appeal, Complainant, for the first time, contends that he previously
contacted an EEO specialist on December 7, 2009.1 However, Complainant
does not provide any evidence that he intended to begin the EEO process
at that time. See Allen v. United States Postal Service, EEOC Request
No. 05950933 (July 9, 1996). In fact, Complainant previously indicated
that the alleged discrimination happened gradually since May 2009,
described in claim (1). EEO Decennial Intake Session Worksheet at 7.
Specifically, Complainant indicated that he contacted an EEO Counselor
after in April, 2010, he was informed by representatives of "grassroots
organizations" and people close to "GALOS" that the identified census
officials had granted "cooked invoices" to pay GALOS for different events.
Id.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the limitation period
is triggered under the EEOC Regulations. See 29 C.F.R. � 1614.105(a)(2);
Ball v. United States Postal Service, EEOC Request No. 05880247
(July 6, 1988). Thus, the limitations period is not triggered until a
complainant reasonably should have suspected discrimination, but before
all the facts that would support a charge of discrimination have become
apparent. After a review of the record, we find that Complainant knew
or reasonably should have suspected the alleged discrimination at the
time of the alleged incidents, i.e., on or prior to February 18, 2010,
and not when he learned of the identified Agency officials' purported
misconduct (which Complainant has not indicated how such misconduct
would lead him to suspect discrimination) in April, 2010.
Accordingly, the Agency's final decision is AFFIRMED.2
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
1/13/11
__________________
Date
1 It is noted that there is no evidence that Complainant served his
appeal brief to the Agency as he was clearly notified to do so in the
Agency's September 8, 2010 decision.
2 It is noted that although the Agency also dismissed the complaint on the
alternative grounds for failure to state a claim, we need not address such
since its dismissal is affirmed due to untimely EEO Counselor contact.
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0120110355
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013