_________________ v. Department of the Navy
05970852 
February 11, 1999


_________________,               )
 Appellant,                     )
                                )  
 v.                             )    Request No. 05970852 
                                )    Appeal No.  01965648
John H. Dalton,                 )    Agency No.  96-60259-004  
Secretary,                      )                             
Department of the Navy,         )                             
 Agency.                        )
                                ) 
                                )

DENIAL OF REQUEST TO RECONSIDER

On June 19, 1997, _________________ (hereinafter referred to as
the appellant) timely initiated a request to the Equal Employment
Opportunity Commission (Commission) to reconsider the decision in
_________________ v. John H. Dalton, Secretary, Department of the Navy,
EEOC Appeal No. 01965648 (May 22, 1997). 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 which 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 a 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). 
 
ISSUE PRESENTED

The issue on appeal is whether the previous decision properly affirmed
the agency's dismissal of appellant's complaint on the grounds that
appellant failed to seek EEO counseling in a timely manner.

BACKGROUND

Appellant contacted an EEO Counselor on December 28, 1995, alleging that
she was discriminated against on the basis of her physical disability
(polio-orthopedic brace-right leg) when the agency allegedly failed to
accommodate her disability, culminating in her resignation from agency
employment on November 3, 1995. In its final agency decision (FAD),
the agency dismissed appellant's formal EEO complaint for failure
to contact an EEO Counselor in a timely manner. On appeal, appellant
indicated that during an October 20, 1995 meeting with agency officials,
she had confirmed that she was being subjected to discrimination when
she learned that her office was being restructured and her desk was
going to be replaced with a credenza. The previous decision affirmed the
agency's FAD without elaboration. In her request for reconsideration,
appellant asserts that she was devastated by the loss of her job and
therefore failed to contact an EEO Counselor in a timely manner. In
support of her request, appellant submits documentation concerning the
merits of her complaint and several other documents already contained in
the complaint file. In response, the agency asserts that appellant has
not submitted evidence to suggest that her distraction and unhappiness
should toll the time limitations period.

ANALYSIS AND FINDINGS

After a careful review of the record, the Commission finds that
appellant's request for reconsideration fails to meet the criteria of 29
C.F.R. §1614.407(c) in that it does not raise new and material evidence,
an erroneous interpretation of law or material fact, or an issue with
precedential implications.  It is therefore the decision of the Commission
to deny appellant's request.

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 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. USPS, EEOC
Request No. 05880247 (July 6, 1988).  Thus, the limitation period is not
triggered until a complainant should reasonably suspect discrimination,
but before all the facts that would support a charge of discrimination
have become apparent.

The Courts also have held that, when determining the timeliness of
an allegation, it is important to consider whether an appellant had
prior knowledge or suspicion of discrimination and the effect of this
knowledge. See Sabree v. United Brotherhood of Carpenters and Joiners
Local No. 33, 921 F.2d 396 (1st Cir. 1990) (plaintiff who believed he
had been subjected to discrimination had an obligation to file promptly
with the EEOC or lose his claim, as distinguished from the situation
where a plaintiff is unable to appreciate that he is being discriminated
against until he has lived through a series of acts and is thereby able
to perceive the overall discriminatory pattern).

In this case, we find that both the agency and the previous decision
correctly assessed appellant's EEO Counselor contact as untimely.
Appellant confirmed on appeal that she suspected that she was being
subjected to discrimination as early as October 1995, and both appellant
and an agency official with whom she spoke after tendering her resignation
indicate that appellant was specifically informed of the requisite time
limitations period for making EEO counselor contact in a November 2, 1995
meeting. The agency also indicates, without rebuttal, that appellant
had previously attended training regarding EEO complaint procedures
and that it had properly posted the requisite information. Appellant
asserts in her request for reconsideration that she failed to contact an
EEO Counselor in a timely manner because she was upset by the emotional
circumstances attendant to her resignation from agency employment,  but
submits no corroborating medical or other evidence indicating that such
distraction rendered her incapable of meeting the 45-day time limitations
period for EEO counseling. 

Accordingly, the previous decision which affirmed the agency's FAD
dismissing appellant's complaint for failure to timely contact an EEO
Counselor was proper and appellant's request for reconsideration is
DENIED. 

CONCLUSION

After a review of the appellant's request for reconsideration, the
agency's response thereto, 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 request.  The decision in EEOC Appeal
No. 01965648 (May 22, 1997) remains the Commission's final decision.
There is no further right of administrative appeal from a decision of
the Commission on this request for reconsideration.

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 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:

Feb. 11, 1999
Date
                                   Frances M. Hart
                                   Executive Officer
                                   Executive Secretariat