01982200
11-12-1998
Cheong J. Chon, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Intelligence Agency), Agency.
Cheong J. Chon v. Department of Defense
01982200
November 12, 1998
Cheong J. Chon, )
Appellant, )
)
v. ) Appeal No. 01982200
) Agency No. 98-DA-01
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Intelligence Agency), )
Agency. )
_________________________________)
DECISION
Appellant filed the instant appeal from the agency's December 11, 1997
decision dismissing appellant's complaint for failure to timely contact
an EEO Counselor. EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides
that an aggrieved person must contact an EEO Counselor within 45 days of
the matter alleged to be discriminatory. The 45 day time limit shall be
extended when the individual shows that she was not notified of the time
limits and was not otherwise aware of them or that she did not know and
reasonably should not have known that the discriminatory matter occurred.
29 C.F.R. �1614.105(a)(2).
The complaint concerns the agency's alleged discriminatory performance
appraisal for the period ending March 31, 1997. The agency found, and
the EEO Counselor's report shows, that appellant initially contacted an
EEO Counselor on August 6, 1997.
Appellant states on appeal:
On 19 Jun 1997, I discussed with [Person A] of DIA Civilian Personnel
Office (DAH) regarding the performance rating that I received on 18
Apr 97. I told [Person A] that I am going to file a grievance with
MD [Diversity Management and Equal Opportunity] for untrue and unfair
performance rating. [Person A] said to me "Why should you go to the MD?
It is our job to straighten out incorrect performance ratings. You have
10 days to submit a written rebuttal request." I followed [Person A's]
direction.
. . . .
I did not know that I must submit a complaint to MD before I submit one
to DAH. DAH and MD were not following the same agency rule.
I did not know if 45 days rule starts from the day I received the INITIAL
(INFORMAL) performance rating (on 18 Apr 98) rather than the day the
final performance rating is received. However, I never received the
final performance rating.
The record contains a performance appraisal signed by the supervisor
on April 18, 1997 and signed by the reviewing official on May 9, 1997.
If the reviewing official signed the appraisal on May 9, 1997, then
appellant could not have been expected to contact an EEO Counselor prior
to that date. The Commission finds that it is not clear when appellant
received the final performance appraisal. Therefore, we shall remand
the complaint so that the agency can supplement the record with evidence
showing when appellant received the final performance appraisal.
The Commission finds that appellant may have been misled about her EEO
rights by Person A. The record does not contain an affidavit from Person
A addressing the nature of the purported conversation with appellant
on June 19, 1997. Therefore, we shall remand the complaint so that
the agency can supplement the record with an affidavit from Person A
addressing the nature of the purported conversation with appellant on
June 19, 1997.
The Commission finds that appellant may also be arguing that she was
unaware of the 45 day deadline for contacting an EEO Counselor. It is
the Commission's policy that constructive knowledge will be imputed to an
employee when an employer has fulfilled its obligations under Title VII.
Thompson v. Department of the Army, EEOC Request No. 05910474 (Sept. 12,
1991) (citing Kale v. Combined Ins. Co. of America, 861 F.2d 746
(1st Cir. 1988)). The Commission has held that information in an EEO
Counselor's report regarding posting of EEO information was inadequate
to support application of a constructive notice rule. Pride v. United
States Postal Serv., EEOC Request No. 05930134 (Aug. 19, 1993) (citing
Polsby v. Shalala, 113 S. Ct. 1940 (1993)). The Commission found in Pride
that the agency had merely made a generalized affirmation that it posted
EEO information. Id. The Commission found that it could not conclude
that appellant's contact of an EEO Counselor was untimely without specific
evidence that the poster contained notice of the time limit. Id.
In the instant matter the agency has failed to produce any evidence
showing that appellant had actual or constructive notice of the time limit
for contacting an EEO Counselor. The agency has not supplied a copy of
any EEO poster(s) or an affidavit describing the poster(s). Therefore,
we can not find that appellant had actual or constructive notice of the
time limits for contacting an EEO Counselor. The Commission shall remand
the complaint to the agency so that it may supplement the record with
evidence showing whether appellant had actual or constructive notice of
the time limit for contacting an EEO Counselor more than 45 days before
she contacted an EEO Counselor.
The agency's decision dismissing the complaint is VACATED and we REMAND
the complaint to the agency for further processing in accordance with
this decision and applicable regulations.
ORDER
The agency shall supplement the record with:
1. Evidence showing when appellant received the final performance
appraisal.
2. An affidavit from Person A addressing the nature of the purported
conversation with appellant on June 19, 1997.
The agency shall investigate the issue of whether appellant had actual
or constructive knowledge of the time limit for contacting an EEO
Counselor more than 45 days before she contacted an EEO Counselor.
The agency shall supplement the record with copies of the EEO posters
(or affidavits describing the posters if the posters are unavailable)
and any other evidence showing that appellant was informed, or should
have known, of the time limits for contacting an EEO Counselor.
The agency shall redetermine whether appellant timely contacted an
EEO Counselor. Within 30 days of the date this decision becomes
final the agency shall either issue a letter to appellant accepting
the complaint for investigation or issue a new decision to appellant
dismissing the complaint. A copy of the letter accepting the complaint
or new decision dismissing the complaint must be sent to the Compliance
Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to
File A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil
action for enforcement or a civil action on the underlying complaint is
subject to the deadline stated in 42 U.S.C. �2000e-16� (Supp. V 1993).
If the appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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 (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such 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. 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:
November 12, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations