01a43804
09-13-2004
Frankie D. Laster, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Frankie D. Laster v. Department of the Army
01A43804
September 13, 2004
.
Frankie D. Laster,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A43804
Agency No. ARCEVICK04FEB0021
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated April 6, 2004, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
On March 24, 2004, complainant filed a formal complaint, alleging that he
was subjected to discrimination on the bases of disability and age when:
(1) on November 20, 2003, he was not selected for the position of
Park Ranger, GS-0025-09 at Enid Lake Field Office (Announcement
No. SWGR03291202); and
(2) on November 20, 2003, he was not selected for the position of Park
Ranger (GIS), GS-0025-07/09 at Grenada Lake Field Office (Announcement
No. SWGR03405956).
In its April 6, 2004 final decision, the agency dismissed complainant's
complaint on the grounds of untimely EEO Counselor contact, pursuant to
29 C.F.R. � 1614.107(a)(2). The agency determined that complainant did
not initiate pre-complaint counseling concerning his claims. The agency
noted that prior to the filing of the formal complaint, complainant
through his representative sent email correspondence to the EEO office.
The agency determined, however, that complainant's intentions were
unclear despite the EEO office's attempts to ascertain his claims.
The agency further determined that complainant's email correspondence to
the EEO office was the equivalent of some type of strategy session between
complainant and his representative. Furthermore, the agency determined
that complainant, through his representative, did not intend to initiate
EEO counseling until January 21, 2004, when his representative sent a
letter to the agency requesting EEO counseling, which was well beyond
the 45-day limitation period.
On appeal, complainant through his representative states that he did
initiate contact with an EEO Counselor in a timely manner. Complainant's
representative further states that complainant initiated EEO contact on
December 1 and 10, 2003, when he sent e-mail correspondences to the EEO
office requesting EEO counseling concerning his non-selections.
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 Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). 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 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.
The Commission determines that the agency improperly dismissed
complainant's complaint for untimely EEO Counselor contact. The
Commission finds that complainant initiated EEO Counselor contact
on December 1, 2003. The record contains a copy of an e-mail dated
December 1, 2003, from complainant to an EEO Specialist stating that
he is requesting EEO counseling. The record also contains a copy of
an e-mail dated December 5, 2003, from the EEO Specialist to an union
representative questioning why she needed to attend a meeting with
complainant at his request; and stating that if complainant wished to
file an EEO complaint, that he needed to contact her and that she would
assign an EEO Counselor to him. Additionally, the record contains a
copy of an e-mail dated December 10, 2003, from complainant to the EEO
Specialist stating that he is requesting EEO counseling on December 19,
2003 with his union representative. A review of the above referenced
email correspondence reflects that complainant initiated EEO Counselor
contact in December 2003, which constituted timely EEO contact for
the alleged discriminatory incidents identified in claims (1) and (2),
which purportedly occurred on November 20, 2003.
Moreover, as noted above, the agency indicated in its final decision
that complainant �did not initiate pre-complaint counseling� on the
matters identified in the instant complaint. We disagree with this
determination. The record in this case contains various pre-complaint
documents regarding complainant's non-selection for the subject position,
including an EEO contact sheet identifying the non-selections; an EEO
Counselor's Report regarding the non-selections; and a Notice of Right
to File a Discrimination Complaint dated March 16, 2004, informing
complainant that a final counseling interview was held in the matter
relating to non-selections at the Enid Lake Field Office and the Grenada
Lake Field Office.
Accordingly, the agency's decision dismissing complainant's complaint
is REVERSED and the complaint is REMANDED to the agency for further
processing in accordance with the ORDER below and applicable regulations.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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 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 (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 13, 2004
__________________
Date