05981008
11-04-1999
Richmond A. Johnson, Appellant, v. John H. Dalton, Secretary, Department of the Navy, Agency.
Richmond A. Johnson, )
Appellant, )
) Request No. 05981008
v. ) Appeal No. 01973320
) Agency No. 97-00251-023
John H. Dalton, )
Secretary, )
Department of the Navy, )
Agency. )
)
DENIAL OF REQUEST TO RECONSIDER
On July 28, 1998, the appellant timely initiated a request to the
Equal Employment Opportunity Commission (Commission) to reconsider the
decision in Johnson v. Department of the Navy, EEOC Appeal No. 01973320
(July 8, 1998). EEOC regulations provide that the Commission may, in its
discretion, reconsider any previous decision. 29 C.F.R. �1614.407(a). The
party requesting reconsideration must submit written argument or evidence
that tends to establish one or more of the following three criteria:
new and material evidence is available that was not readily available
when the previous decision was issued, 29 C.F.R. �1614.407(c)(1);
the previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy, 29
C.F.R. �1614.407(c)(2); and the decision is of such exceptional nature as
to have substantial precedential implications, 29 C.F.R. �1614.407(c)(3).
The issue presented is whether the previous decision properly affirmed the
final agency decision (FAD). The FAD partially dismissed appellant's
complaint, which alleged discrimination on the basis of his race
(African-American) and color (black) when: (1) on November 14, 1996,
the Zone Manager denied him overtime; (2) on November 19, 1996, he was
harassed by the Zone Manager and the Project Manager when they unjustly
criticized his work relying on false statements from other supervisors;
(3) in June 1992, the Welding Shop allowed his nuclear qualifications to
expire; (4) on August 20, 1996, the Welding Shop denied him the use of a
thermoluminescent dosimeter (TLD), thereby preventing him from supervising
in the nuclear work program; and (5) on December 2, 1990, the Welding Shop
denied him a permanent promotion to Welder Supervisor I (Foreman), WS-10.
The FAD accepted allegations (1) and (2) for investigation, and dismissed
allegations (3), (4), and (5) as untimely, finding that appellant had
failed to initiate contact with an EEO Counselor within forty-five (45)
days of the dates of the incidents at issue. The previous decision
affirmed the FAD. Specifically, the FAD found that the incident at issue
in allegation (3) arose more than four years before appellant initiated
counseling, the incident at issue in allegation (4) occurred 62 days
before he initiated counseling, and the incident at issue in allegation
(5) occurred almost six years before appellant initiated counseling.
In his request for reconsideration, the appellant argues that the
prior decision and the FAD relied on an erroneous fact with respect to
allegation (4). Specifically, he argues that his October 21, 1996, EEO
Counselor contact was timely as to allegation (4), because it occurred
thirty-four (34) days after his alleged September 17, 1996, demotion from
a supervisory position due to his lack of nuclear area qualifications.
Appellant contends that the August 20, 1996 date used in the FAD as the
applicable date for allegation (4) is incorrect, because on that date
he had been told "not having a nuclear qualification would not stop me
from being a foreman." The agency has not filed a reply.
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, which can occur before all the facts that support a
charge of discrimination have become apparent.
The record reveals that the prior decision did not rely on an erroneous
fact. Allegation (4), as presented by appellant in his formal complaint,
stated as follows: "on or about September 17, 1996 the Welding Shop
denied me a nuclear qualification allowing my use of a thermoluminescent
Dosimeter (TLD) and the opportunity to supervise nuclear work."
The formal complaint did not reference the alleged demotion appellant
raised on appeal and in his request for reconsideration. The EEO
Counselor's Report states that appellant told the EEO Counselor that
on August 20, 1996, he asked the Welding Shop nuclear coordinator to
permit appellant to return to nuclear work (including TLD use), which
he had not performed since July 1992, but the nuclear coordinator denied
this request, whereupon appellant met with the shop superintendent on or
about September 5, 1996. The EEO Counselor later executed a declaration,
submitted by the agency on appeal, confirming that appellant provided
this chronology during their initial interview. See Complaint File at
Enclosure 2-7. The EEO Counselor's declaration also stated that both
the nuclear coordinator and the shop superintendent had confirmed
this chronology of events when interviewed by the EEO Counselor,
as also indicated in the EEO Counselor's Report. Id. We find this
evidence persuasively refutes appellant's contention in his request for
reconsideration that he was told on August 20, 1996 that not having a
nuclear qualification would not stop him from being a foreman.
The FAD therefore properly concluded that appellant's time to initiate
contact with an EEO Counselor regarding allegation (4) began to
run on August 20, 1996, rendering his October 21, 1996 contact
untimely. Accordingly, after a review of the appellant's request
for reconsideration, the previous decision, and the entire record, the
Commission finds that the appellant's request fails to meet the criteria
of 29 C.F.R. �1614.407(c), and it is the decision of the Commission to
deny the appellant's request. The decision in EEOC Appeal No. 01952093
remains the Commission's final decision.
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court. 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. 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.
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
4 05981008
01973320
97-00251-023
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:
November 4, 1999
DATE Frances M. Hart
Executive Officer
Executive Secretariat