0120073209
09-25-2007
James L. Griffin, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.
James L. Griffin,
Complainant,
v.
Henry M. Paulson, Jr.,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120073209
Agency No. EEODFS-07-0111-F
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from the final agency decision (FAD)
dated June 14, 2006, dismissing a portion of his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., 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. Complainant alleged that
he was subjected to discrimination based on his sex (male), disability,
age (born in 1950), and/or reprisal for prior protected EEO activity
under when:
1. beginning in or around December 2005, management denied his requests
for reasonable accommodation of his disability,
2. on or about March 29, 2006, management cancelled vacancy announcement
number 50-30-ARB747M6, advertising the position of Internal Revenue Agent,
GS-0512-12,
3. in April and May 2006, he was not selected for the position of Internal
Revenue Agent, GS-12 or GS-13, under eight vacancy announcements:
50-30-SP60224B, 50-30-SP60277B, 50-30-SP60405B, 50-30-ARB662M6,
50-30-ARB713M6, 50-30-ARB716M6, 50-30-ARB719M6, and 50-30-ARB720M6, and
4. effective September 21, 2006, he was removed for inability to perform
the duties of his position and unavailability to report to duty.
The FAD accepted claims 1 and 4. It advised that claim 4 would be
processed as a mixed case complaint because it was appealable to the
Merit Systems Protection Board (MSPB). It advised that claim 1 was
inextricably linked to claim 4, and hence would be processed with claim
1 as a mixed case complaint.
The FAD dismissed claims 2 and 3 for failure to timely initiate contact
with an EEO counselor. An aggrieved person must seek EEO counseling within
45 days of the date of the alleged discriminatory action, or in the case
of a personnel action, within 45 days of the effective date of the action.
29 C.F.R. � 1614.105(a)(1). Under 29 C.F.R. � 1614.105(a)(2), an agency
shall extend the 45 day time limit to initiate EEO counseling where an
individual shows that she was not notified of the time limit and was
not otherwise aware of it, or for other reasons considered by the agency
or Commission. The FAD found that the last nonselection in claims 2 and
3 occurred on May 6, 2006, but complainant did not initiate EEO contact
until November 4, 2006,1 beyond the 45 day time limit to do so.
In response to an agency inquiry concerning untimeliness, complainant
explained that he was unaware of the time limit to initiate EEO
counseling, and was not informed of it. The record contains an affidavit
by a Supervisory EEO Specialist affirming that posters entitled "Equal
Employment is the Law" with all mandatory timeframes were posted at
a specified address in at a work facility in Everett, Washington.
The accompanying poster contains the 45 day time limit to initiate
contact with an EEO counselor, as well as contact information.
It is the Commission's policy that constructive knowledge will be
imputed to an employee when an employer has fulfilled its obligation
of informing employees of their rights and obligations under EEOC's
regulations. Thompson v. Department of the Army, EEOC Request No. 05910474
(Sept. 12, 1991). The agency has the burden of producing sufficient
evidence to support its contention that it fulfilled its statutory duty
of conspicuously posting EEO information or that it otherwise notified
complainant of her rights. Examples of such support are an affidavit
by an EEO official stating that that there are unobstructed poster(s)
with EEO information, including the 45 calendar day time limit to contact
an EEO counselor posted in the facility where the complainant worked and
identifying the periods of posting accompanied by a copy of the poster;
documentation that the complainant took EEO training where the 45 calendar
day time limit was covered, etc.).
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 also Gens
v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992).
A review of the counselor's report indicates complainant stated that
he started reporting to Bellevue, Washington in June 2004, not Everett,
Washington. He said that on paper, he continued to report to Everett.
There are specific references in the record of complainant reporting
to Bellevue in January 2006 and July 2007. As the record does not show
complainant had been reporting to Everett since June 2004, we find that
the agency has not met its burden of showing it notified him via posters
of the time limit to initiate EEO contact. We add that the Supervisory
EEO Specialist's affidavit did not give a timeframe for when the EEO
posters were posted.
Accordingly, the FAD's dismissal of claim 3 for failure to timely
initiate contact with an EEO counselor is reversed. We do not reverse
the FAD's dismissal of claim 2, however, because it was also dismissed
by the FAD for failure to state a claim. The FAD reasoned that the
vacancy announcement was cancelled, and no selection was made. Duran
v. Department of the Treasury, EEOC Appeal No. 01952306 (July 25, 1995).
Complainant does not dispute this. Accordingly, the dismissal of claim
2 is affirmed.
We now turn to the FAD's disposition of claim 1. Previously EEOC Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), Chap. 4, Section II.B.4.d, pages 4-5, 4-6 (November 9,
1999) provided that where a complainant has pending a non-mixed case
complaint and the claims therein are inextricably intertwined with an
appeal on a claim that is appealable to the MSPB, the agency should file
a motion with the MSPB to consolidate the non-mixed case claim with
the mixed case appeal. Management Bulletin EEO-MB 100-1 (October 24,
2003) deleted the above provision from MD-110. It explained that the
EEOC had been informed by the MSPB that that this section improperly
advised parties with regard to MSPB jurisdiction. Specifically, it
incorrectly advised agency representatives to file a motion with an MSPB
Administrative Judge to consolidate matters which are not within their
jurisdiction with matters which are properly before the MSPB Judge.
While the MSPB has jurisdiction over the removal, it has no jurisdiction
over claim 1.2 For example, it would not provide a remedy for claims
of denial of reasonable accommodation apart from affirmative defenses
against the removal. Accordingly, the agency shall process claim 1 as
a non-mixed complaint.
ORDER
The agency is ordered to process claims 1 and 3 in accordance with 29
C.F.R. � 1614.108. Claim 1 shall be processed as a non-mixed complaint.3
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, 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 25, 2007
__________________
Date
1 Complainant initially contacted the EEOC, which referred him back to
the agency for EEO counseling.
2 Complainant, however, may raise the affirmative defense of disability
discrimination/denial of reasonable accommodation in any appeal with
the MSPB regarding his removal.
3 The FAD indicated the agency was processing claim 4 as a mixed case
complaint.
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0120073209
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
6
0120073209