Ronald Jones, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionDec 22, 1999
01990402 (E.E.O.C. Dec. 22, 1999)

01990402

12-22-1999

Ronald Jones, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Ronald Jones, )

Complainant, )

)

v. ) Appeal No. 01990402

) Agency No. BHFR9807I1270

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

____________________________________)

DECISION

On October 16, 1998, complainant filed a timely appeal with this

Commission from a final agency decision (FAD), dated September 10, 1998,

which dismissed his complaint.<1> The Commission accepts the appeal in

accordance with EEOC Order No. 960, as amended.

On July 7, 1998<2> complainant contacted an EEO counselor regarding

claims of discrimination based on race, disability, and reprisal.

Informal efforts to resolve complainant's concerns were unsuccessful.

Accordingly, complainant filed a formal complaint dated July 23, 1998.

The agency defined the claims as follows:

In December 1995 a co-worker was released from the Army Reserves,

but continued to remain employed although he received several DWI's

and his drivers license was suspended;

On November 20, 1993 complainant received his pay statement, which

indicated that he had not been paid for the advance sick leave that he

had requested;

On May 15, 1998, while reviewing his medical file, complainant found

a letter written by his supervisor which he believed to contain false

statements in reference to complainant's light duty status; and,

On February 17, 1998 complainant was harassed with verbal comments by his

supervisor and another individual in regards to complainant's selection

as union representative.

The agency dismissed claims 1, 2 and 4 for untimely counselor contact.

Claims 1 and 4 were also dismissed for failure to state a claim. The FAD

dismissed claim 2 and claim 4 for raising a matter that had not been

brought to the attention of a counselor. Claim 3 was dismissed for

stating the same claim that is pending before the agency.

On appeal, complainant elaborates on his claims. He also contends that

the alleged agency actions have caused him harm and injury, including

absences from work, stress and mental exhaustion.

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 Ball v. U. S. Postal Service,

EEOC Request No. 05880247 (July 6, 1988). 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 she was not notified of the

time limits and was not otherwise aware of them, that she did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence she was prevented

by circumstances beyond her control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

In the instant case, complainant's July 7, 1998 contact was well beyond

the forty-five (45) day time limitation with respect to claims 1, 2,

and 4. Complainant's contact was approximately two and a half years

(claim 1), four years and eight months (claim 2), and four months

(claim 4) after the alleged discriminatory events occurred. Further,

we do not find sufficient reason for extending the time limitation.

Complainant does not contend that he was unaware of the time limitations

for contacting a counselor. Moreover, based on his prior complaint, we

find that complainant knew or should have known of the time limits. Nor

does complainant argue that he did not reasonably suspect discrimination

until forty-five days prior to his EEO contact. Therefore, we find that

the agency properly dismissed claims 1, 2, and 4 for untimely counselor

contact. Because of our disposition we do not consider whether claims 1,

2, and 4 were properly dismissed on other grounds.

EEOC Regulation 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and

herein cited as, 29 C.F.R. � 1614.107(a)(1)) provides that a complaint

should be dismissed if it states the same claim that is pending or has

already been decided by the agency or Commission. The Commission has

interpreted this regulation to require that the complaint must set forth

the "identical matters" raised in a previous complaint filed by the same

complainant, in order for the subsequent complaint to be rejected. See

Russell v. Department of the Army, EEOC Request No. 05910613 (August

1, 1991).

Here, the agency dismissed claim 3 on the grounds that the claim is

currently being addressed by the agency in Case No. BHFR9806I0869.

Based on a review of the record, we find that complainant's July 2, 1998

(Case No. BHFR9806I0869) complaint contains the same claim as set forth

in claim 3. Therefore, claim 3 was properly dismissed pursuant to 29

C.F.R. �1614.107(a)(1).

Accordingly, the agency's decision to dismiss complainant's complaint

is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

Dec. 22, 1999

____________________________

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 Equal Employment Assistant

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.

2The FAD and the Counselor's Report indicate that initial contact with

the EEO office was made on July 17, 1998. However, the Counselor's

Report states that initial contact was made with the counselor earlier,

on July 7, 1998. Therefore, we rely on the this date in our decision.