01982068
04-13-1999
Samuel A. Stuck, Appellant, v. Alexis M. Herman, Secretary, Department of Labor, Agency.
Samuel A. Stuck v. Department of Labor
01982068
April 13, 1999
Samuel A. Stuck, )
Appellant, )
)
v. ) Appeal No. 01982068
) Agency No. 8-07-023
Alexis M. Herman, )
Secretary, )
Department of Labor, )
Agency. )
______________________________)
DECISION
On January 14, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated December 23, 1997, pertaining
to 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. In his complaint, appellant alleged that he was subjected to
discrimination on the basis of sex (male) when, ongoing from some time in
1996, appellant was subjected to disparate treatment by his supervisors
(S1 and S2). Specifically, appellant alleged that S1 and S2 took the
following actions:
Discredited appellant's work and career;
Removed appellant from all outside assignments;
Denied appellant normal working conditions;
Reviewed appellant's work in a disparate manner;
Gave appellant conflicting and impossible tasks, while repeatedly
changing task goals; and
"[M]uch more."
The agency dismissed appellant's complaint pursuant to EEOC Regulation
29 U.S.C. �1614.107(b), for failure to initiate contact with an EEO
Counselor in a timely manner. Specifically, the agency determined that
despite numerous requests by the EEO Counselor for appellant to identify
the dates on which these actions occurred, appellant failed to comply.
Consequently, the agency concluded that appellant failed to provide
indication that any of the actions occurred within forty-five (45)
days of appellant's September 24, 1997 initial EEO Counselor contact.
On appeal, appellant contends that he provided the agency a detailed
summary of the ongoing and continuous alleged disparate treatment and that
the summary contained the relevant dates. Finally, appellant asserts that
the agency's inquiry should not be focused on any particular incident,
but on the pattern of alleged discrimination.
The Commission notes that the record contains a 23-page document which
contains a summary of events that occurred at appellant's workplace
from May 1, 1996, through October 1, 1997. All of the entries consist
of brief, incomplete sentences, many of which merely describe everyday
occurrences at appellant's work; e.g. "off-annual leave."
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. USPS,
EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period
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.
Where, as here, there is an issue of timeliness, "[a]n agency always bears
the burden of obtaining sufficient information to support a reasoned
determination as to timeliness." Guy, v. Department of Energy, EEOC
Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of
Defense, EEOC Request No. 05920506 (August 25, 1992)). In addition, in
Ericson v. Department of the Army, EEOC Request No. 05920623 (January
14, 1993), the Commission stated that the agency has the burden
of providing evidence and/or proof to support its final decisions.
See Gens v. Department of Defense, EEOC Request No. 05910837 (January
31, 1992). In the instant case, we find that the agency did not meet
that burden. Without identifying the dates on which the instances
of alleged discrimination occurred, the agency merely found that
appellant failed to show that they occurred within the forty-five (45)
day limitation period. This unsupported statement is insufficient to
qualify as a reasoned determination as to timeliness. We acknowledge the
difficulty the agency had in obtaining specific dates from appellant;
however, that difficulty does not justify dismissal for untimeliness
without supporting documentation or evidence.
However, EEOC Regulation 29 U.S.C. �1614.106(c) provides that a
complaint must contain a statement which is sufficiently precise to
describe generally the action(s) or practice(s) that form the basis of
the complaint. In the instant case, we find that appellant's general
allegations of being subjected to disparate treatment, are insufficiently
precise to state a processable claim under the EEOC regulations.
Appellant failed to identify the specific actions taken against him
and the person(s) responsible for each alleged act of discrimination.
Moreover, the summary provided by appellant contains only partial
statements, many of which are unrelated to appellant's allegations
of discrimination. Based on the foregoing, we find that dismissal is
proper pursuant to 29 U.S.C. �1614.107(a), for failure to state a claim.
See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994).
Accordingly, the agency's final decision dismissing appellant's complaint
is AFFIRMED for the reasons set forth herein.
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. �1614.604(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 to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
April 13, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations