01980316
01-07-1999
Ravi Kumar Saxena, Appellant, v. David J. Barram, Administrator, General Services Administration,) Agency.
Ravi Kumar Saxena v. General Services Administration
01980316
January 7, 1999
Ravi Kumar Saxena, )
Appellant, )
)
v. ) Appeal No. 01980316
) Agency No. 97-NCR-WP-RKS-7
David J. Barram, )
Administrator, )
General Services Administration,)
Agency. )
)
DECISION
The Commission finds that the agency's September 5, 1997 decision
dismissing a portion of appellant's complaint of discrimination on
the grounds of untimely EEO counselor contact, is proper pursuant to
29 C.F.R. �1614.107(b). A review of the record shows that appellant's
complaint raised incidents dating back to 1989, 1991, 1994 and 1996.
Appellant alleged that he had been the victim of continuous unlawful
employment discrimination in his non-selections for 18 vacancies and 2
evaluations.
The agency dismissed a portion of the complaint on the grounds of untimely
EEO counselor contact after finding that appellant had failed to seek
EEO counseling within the 45-day time limit provided by EEOC Regulations.
The record shows that when appellant sought EEO counseling on March 15,
1997, he acknowledged that he had applied for promotions since 1989,
that less qualified Caucasian individuals or individuals born in the
United States were always selected, and that he had seen for years that
individuals hired at the GS-12 level were promoted promptly to the GS-13
level, except for him.
The Commission applies a "reasonable suspicion" standard to the
triggering date for determining the timeliness of the contact with an
EEO counselor. Cochran v. United States Postal Service, EEOC Request
No. 05920399 (June 18, 1992). Under this standard, the time period
for contacting an EEO counselor is triggered when the complainant should
reasonably suspect discrimination, but before all the facts that would
support a charge of discrimination may have become apparent. Id.; Paredes
v. Nagle, 27 FEP Cases 1345 (D.D.C. 1982). Based on the foregoing,
we find that appellant failed to seek EEO counseling within the 45-day
time limit provided by EEOC Regulations. We find that the continuing
violation theory does not render the untimely allegations timely because
appellant should have had a reasonable suspicion of discrimination at
the time the non-selections occurred and the evaluation was received.
Appellant has not submitted persuasive evidence showing that he only
developed a reasonable suspicion of discrimination with regard to the 1995
evaluation and the 17 non-selections sometime during the 45 day period
preceding his counselor contact. The agency's decision dismissing a
portion of the complaint is AFFIRMED.
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. �l6l4.604(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 consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (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:
January 7, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations