01976234_r
04-02-1999
Teresa E. Porter, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Teresa E. Porter, )
Appellant, )
) Appeal No. 01976234
v. ) Agency No. 96-1052
)
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
)
DECISION
On August 6, 1997, appellant filed a timely appeal with this Commission
from a July 15, 1997 final agency decision, dismissing one allegation of
her complaint for failure to contact an EEO Counselor in a timely manner.
The allegation dismissed from appellant's November 17, 1995 complaint was
whether appellant was discriminated against on the bases of race and in
retaliation when she was not selected for a position in December 1994 as
a special agent. In dismissing the allegation for untimely EEO contact,
the agency stated that although appellant suspected discrimination in
December 1994, she failed to pursue EEO counseling until September 6,
1995, noting that appellant was in contact with an EEO Counselor in
December 1994, January 11, 1995, July 9, 1995, and August 18, 1995.<1>
The agency also stated that even if appellant contacted the EEO office
in a timely manner, she did not pursue her claim with due diligence and
the doctrine of laches should apply. The agency further stated that the
allegation did not constitute a continuing violation. The agency also
denied that appellant was advised by the EEO Counselor that her claim
of a discriminatory non-selection could be raised in the future.
As an initial matter, the Commission notes that the dismissed allegation
was the subject of a prior appeal. In an April 11, 1996 final agency
decision (FAD-1), the agency dismissed the allegation on the grounds of
untimely EEO contact. In FAD-1, the agency stated that appellant was
aware that her non-selection was discriminatory in December 1994 and,
therefore, her September 1995 contact was untimely. The agency rejected
appellant's explanation that she was advised by an EEO Counselor in
January 1995, that she could include the non-selection in a later
complaint, stating therein that the EEO Counselor had communicated
to the agency that appellant was counseled on an issue other than
her non-selection and that appellant made a decision not to pursue
her formal complaint. Appellant appealed FAD-1 to the Commission.
Porter v. Department of the Treasury, EEOC Appeal No. 01964369 (January
16, 1997).
In reversing FAD-1 and remanding the allegation to the agency for a
supplemental investigation, the Commission noted that the agency failed
to provide a statement from the EEO Counselor with whom appellant met
in January 1995. The Commission also noted that the record did not
include evidence of the EEO Counselor's notes regarding the contact in
January 1995. The agency was ordered, among other things, to obtain
the affidavit of the EEO Counselor with whom appellant met in January
1995, including the nature of the discussions, issues discussed and any
advice provided. The EEO Counselor was also to provide any notes she
relied upon to prepare the affidavit. The agency was also ordered to
supplement the record with a copy of any official record pertaining to
appellant's January 1995 contact.
On remand, the agency obtained a sworn declaration from the EEO Counselor.
Therein, the Counselor stated that she counseled appellant on "two
different EEO-related issues"<2> but that the counseling notes for the
case were destroyed.<3> The Counselor also stated that as she recalled,
the non-selection was beyond the 45-day time period for timely contact.<4>
The EEO Counselor also stated that appellant discussed the non-selection
with her and that the non-selection was not the basis of the complaint,
but was raised in the context of demonstrating a series of events that
led appellant to feel discriminated against.<5> The Counselor stated
also that she could not recall advising appellant that she could use
non-selection as the basis of a future complaint.
The record also contains a June 27, 1997 affidavit of appellant, wherein
she stated that she initiated EEO contact in December 1994, regarding the
non-selection and, also, that she met with an EEO Counselor on January
11, 1995. Appellant's affidavit reflects that she was informed by the
EEO Counselor on January 11, 1995, that she could include the issue
of her non-selection in a future complaint. Appellant stated that,
based on the EEO Counselor's statement, she believed that she could
raise the non-selection issue later. Appellant denied that the EEO
Counselor advised her that her non-selection could only be raised as
background information.
On appeal, appellant continues to maintain that when she met with the
EEO Counselor on January 11, 1995, she was advised that she could pursue
the non-selection issue later. Appellant also contends that the EEO's
Counselor's declaration does not refute her assertion of a January 1995
contact and that the EEO Counselor admitted that non-selection was raised.
Appellant further contends that while the EEO Counselor stated in her
declaration that she did not recall telling appellant that she could use
the non-selection as the basis of a future complaint, the EEO Counselor
did not deny that the discussion on non-selection did not take place.
In response to the appeal, the agency contends that appellant failed
to file a formal complaint in a timely manner, stating that appellant
"timely sought EEO counseling in December 1994 and again in January 1995"
but failed to file a formal complaint.<6> The agency also asserts that
the doctrine of laches should apply because appellant failed to pursue
her claim with due diligence by failing to file her formal complaint.
The agency denied that appellant was misled by the EEO Counselor.
The agency also asserts that it was prejudiced by the destruction of
the Counselor's Report, including the Notice of Final Interview with
the EEO Counselor for appellant's December 1994 and January 1995 contacts.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that an aggrieved
person initiate contact with a 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. The Commission has
adopted a "reasonable suspicion" standard (as opposed to a "supportive
facts" standard) to determine when the 45-day limitation period is
triggered. See Ball v. U.S. Postal Service, 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.
Although careful compliance with the time limits generally is required
of parties alleging discrimination, Commission regulations further
provide that the 45-day period may be extended where the individual
shows that he or she was not notified of the time limit and was not
otherwise aware of it, that he or she did not know and reasonably should
not have been aware that the alleged discriminatory matter or personnel
action occurred, that despite due diligence he or she was prevented by
circumstances beyond his or her control from contacting an EEO Counselor
within the time limit, or for other reasons deemed sufficient by the
agency or the Commission. See 29 C.F.R. �1614.105(a)(2). In addition,
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.
Upon review, we find, based on appellant's affidavit, that appellant
first contacted an EEO Counselor in December 1994 and on January
11, 1995, regarding her December 1994 non-selection. In addition,
the EEO Counselor herself admits in her declaration that the issue
of the non-selection was raised and the agency admits on appeal that
appellant timely sought counseling in December 1994 and January 11, 1995.
Accordingly, appellant's contact was within the 45 days required for
timely Counselor contact.
However, what the agency is in effect asserting is that although
appellant made timely contact, she did not evidence an intent to pursue
the EEO process until September 6, 1995, which was beyond the requisite
45-day limitations period. The Commission has held that a complainant
satisfies the criterion of Counselor contact by contacting an agency
official logically connected with the EEO process and by exhibiting
an intent to begin the EEO process. See Allen v. U.S. Postal Service,
EEOC Request No. 05950933 (July 8, 1996) Floyd v. National Guard Bureau,
EEOC Request No. 05890086 (June 22, 1989) Dumaguindin v. Department
of the Navy, EEOC Appeal No. 01954218 (April 1, 1996). We find that
appellant intended to pursue the non-selection issue in January 1995.
However, she did not do so until September 1995, approximately six
months later, because she relied on the EEO Counselor's representation
in January 1995, that she could pursue the allegation in the future.
The Commission has held that agency actions that mislead an individual
concerning his or her EEO rights will toll the limitations period.
See Herrera v. U.S. Postal Service, EEOC Request No. 05891351 (September
28, 1989) (the Commission found that it would allow the "tolling of time
requirements when an agency lulls a complainant into taking no action or
actively misleads or prevents a complainant from asserting his rights");
Ong v. Department of the Army, EEOC Request No. 05880290 (August 8, 1988).
Although the agency denies that appellant was misled by the EEO Counselor,
we find appellant's affidavit more persuasive than the declaration of
the EEO Counselor which is tenuous and appears to be purposefully vague.
Furthermore, in her declaration, the EEO Counselor did not deny that she
informed appellant that she could pursue the allegation later. The EEO
Counselor stated only that she could not recall if she had done so.
The Commission has held 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." 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)). The agency has failed to do so.
Consistent with our discussion herein, the final agency decision
dismissing appellant's non-selection allegation for untimely EEO contact
is REVERSED and the allegation is REMANDED to the agency for further
processing.
ORDER
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgement to appellant 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 (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:
April 2, 1999
DATE Ronnie Blumenthal, Director
1The agency did not provide any EEO
records regarding the alleged December
1994, July 9, 1995, and August 18,
1995 contacts.
2The EEO Counselor did not identify the two issues.
3The EEO Counselor did not provide any explanation why or when her
"notes" were destroyed.
4The EEO Counselor did not elaborate further on this conclusion.
5The EEO Counselor does not indicate specifically when the non-selection
was discussed but as noted hereinbefore, the agency was specifically
ordered by the Commission in its prior decision to obtain an affidavit
from the Counselor with whom appellant met in January 1995.
6The agency asserts for the first time on appeal that appellant's formal
complaint was untimely filed, stating that appellant should have filed
a formal complaint in December 1994 and January 1995 after seeking EEO
counseling. Since this argument was not raised or addressed by the agency
in its final decision when it dismissed the allegation, it is improper
for the agency to raise this argument on appeal. Moreover, there is no
evidence in the record that appellant was issued a notice of right to file
a formal complaint by the agency in either December 1994 or January 1995.