01983902_r
05-17-1999
Dierdre A. Lum, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Dierdre A. Lum, )
Appellant, )
) Appeal No. 01983902
v. ) Agency No. 3AF1C98005
)
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
On April 17, 1998, appellant filed a timely appeal of the April 8,
1998 final agency decision which dismissed one of two allegations of
her complaint for failure to contact an EEO Counselor in a timely manner.
Appellant's March 17, 1998 complaint reflects that she is alleging that
she was subjected to discrimination on the basis of national origin
(U.S.A.) when the following occurred: 1. in May 1997, she was found
not qualified for the position of Exercise Physiologist for which she
had applied; and 2. on January 23, 1998, she was not selected for the
position of Exercise Physiologist based on a pre-selection. The agency
accepted allegation 2 for investigation. In dismissing allegation 1,
the agency noted that appellant failed to contact an EEO Counselor within
the requisite 45 days.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that an aggrieved
person initiate contact with an EEO Counselor within 45 days of the
date of the matter alleged to be discriminatory or, in the case of a
personnel action, within 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) provides that the agency or the
Commission shall extend the 45-day time limit when the individual shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not have
known that the discriminatory matter or personnel action occurred, that
despite due diligence he or she was prevented by circumstances beyond his
or her control from contacting the counselor within the time limits, or
for other reasons considered sufficient by the agency or the Commission.
EEOC Regulation 29 C.F.R. �1614.604(c) provides that the time limits in
Part 1614 are subject to waiver, estoppel and equitable tolling.
The record reveals that on May 19, 1997, appellant submitted an
application to the agency for the position of Exercise Physiologist.
Appellant was rated not qualified. When appellant inquired about the
rating, she was told that she received the rating because she lacked the
educational requirements. Appellant was also allegedly told that the
rating decision was final. The record does not disclose when appellant
was informed that she was not qualified for the position. It does not
appear that the position was filled. The record further reveals that
in January 1998, appellant applied for an Exercise Physiologist position.
Appellant was again informed that she was not qualified for the position
because of the education requirements. The record further reflects that
appellant then spoke with a supervisor, who again reviewed appellant's
January 1998 application and found her to be qualified and so informed
appellant. In a January 27, 1998 letter, appellant was informed by the
agency that she was not selected for the position.
On appeal, appellant asserts that at the time of the alleged event, she
did not know that she was being discriminated against. Appellant also
asserts that she had just arrived in Panama less than two months before
she applied for the position and that when she was told by the agency
she was found not qualified, she was unaware that she had any recourse
to challenge the rating officially. Appellant further asserts that
only when she reapplied for the same position in January 1998, and
she was rated qualified that she suspected that something was wrong,
noting that her educational background had not changed since she first
applied for the position in 1997.
Upon review, the Commission is unable to determine the propriety of the
agency's decision. Appellant does not dispute, and the Counselor's Report
reveals, that she did not contact an EEO Counselor until February 2,
1998, regarding the alleged discrimination. Although the record does
not disclose specifically when appellant was informed that she was
not qualified for the position, the record indicates that appellant's
February 2, 1998 contact was clearly beyond the requisite 45 days.
However, it appears, based on appellant's appeal, that she may not
have been aware of her EEO rights. The agency has not provided any
evidence indicating that appellant had either actual or constructive
notice of her EEO rights or was otherwise aware of the 45-day time
period for timely EEO Counselor contact. In addition, appellant
also appears to assert on appeal that she may not have suspected
discrimination until in January 1998. It is well-settled that 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." Williams v. Department of Defense,
EEOC Request No. 05920506 (August 25, 1992). Accordingly, on remand
the agency shall conduct a supplemental investigation to determine the
timeliness of appellant's EEO contact and to determine whether appellant
has provided justification sufficient to extend the time limit if her
contact is found to be beyond the 45-day time limit.
Consistent with the foregoing discussion, the agency's dismissal of
allegation 1 of appellant's complaint is VACATED and allegation 1 is
REMANDED to the agency for a supplemental investigation.
ORDER
The agency is ORDERED to conduct a supplemental investigation on the issue
of timeliness of EEO contact which shall include the following actions:
1. The agency shall conduct an inquiry sufficient to enable it to make
a reasoned determination as to timeliness.
2. The agency shall supplement the record with specific evidence that
shall include, but is not limited to, affidavits from relevant agency
officials confirming the existence of EEO posters, their contents and
location relative to where appellant would be expected to see them,
and the effective dates of posting and any other documentation regarding
whether appellant had actual or constructive notice of the time period for
Counselor contact during the relevant time period. In the event notices
were posted, the agency shall place copies of the posters (or affidavits
describing the posters if the posters are unavailable) in the record.
3. The agency shall gather any other evidence necessary to establish
when appellant learned of the time limit for contacting an EEO Counselor
and when appellant had, or should have had, a reasonable suspicion of
discrimination.
4. After completion of the supplemental investigation, the agency
shall decide whether to process or dismiss the remanded allegation. 29
C.F.R. �1614.106 et seq. The supplemental investigation and issuance of a
notice of processing and/or final agency decision must be completed within
45 (forty-five) calendar days of the date this decision becomes final.
5. If the agency issues a final decision dismissing the allegation for
untimely EEO contact, the agency shall provide a detailed and reasoned
analysis and the facts relied upon to dismiss the allegation.
A copy of the notice of processing and/or a copy of the new final agency
decision and the report of supplemental investigation with supporting
documentation must be sent to the Compliance Officer as referenced below.
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(c) (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:
May 17, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations