0120103499
02-04-2011
Alan E. Fearns, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Alan E. Fearns,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120103499
Agency No. ARFTWAIN10MAR01369
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated July 15, 2010, dismissing Complainant's 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.
BACKGROUND
In his complaint, Complainant alleged that the Agency subjected
Complainant to discrimination on the basis of sex (male) when between
May 2009 and March 31, 2010, Complainant's supervisor allowed derogatory
rumors to be spread about him.
In its final decision, the Agency dismissed Complainant's claim for
untimely EEO Counselor contact.
CONTENTIONS ON APPEAL
On appeal, Complainant contends his initial EEO Counselor contact on May
14, 2010, was timely because he initially went to the EEO office on March
31, 2010, and was told that March 31, 2010, was the first day of the 45
days he had to initiate the EEO complaint process. Complainant further
contends that the next week he was told that if a specific action did not
occur but a series of actions did, hostile work environment should be
claimed, and the day Complainant reported to the EEO office, March 31,
2010, was "Day 1." Complainant contends that he understood that he was
"to have 45 days from 'Day 1' to gather and present evidence and turn
it in."
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides for the dismissal
of complaints where the complainant did not 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. The Commission's regulations, however,
provide that the time limit will be extended when the complainant 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. See 29 C.F.R. � 1614.105(a)2). The 45-day time
limitation period is subject to estoppel. 29 C.F.R. � 1614.604(c).
Equitable estoppel is the principle by which a party is precluded by his
own acts, words, or silence from asserting a right to which he otherwise
would be entitled against another who rightfully relied on the party's
acts, words, or silence to his detriment. Jackson v. U.S. Postal Serv.,
Appeal No. 01931557 (Feb. 17, 1994).
Where timeliness is an issue, an agency bears the burden of proof of
obtaining sufficient information to support a reasoned determination
as to whether that time limit was met. Guy v. Dep't. of Energy, EEOC
Request No, 05930703 (Jan. 4, 1994) (citing Williams v. Dep't. of Defense,
EEOC Request No. 05920506 (Aug. 25, 1992). Further, the Agency has the
burden of providing evidence or proof to support any decision it makes
regarding the timeliness of a thing. See Ericson v. Dep't. of the Army,
EEOC Request No. 05920623 (Jan. 14, 1993).
In this case, Complainant contends that on March 31, 2010, he was
told by an EEO Specialist that he had 45 days from March 31, 2010,
to initiate the EEO complaint process. The record reveals several
documents presented to Complainant by an EEO Specialist on March 31, 2010.
One of these documents, prepared and signed by the same EEO Specialist
Complainant alleges he spoke to, is titled "Information Inquiry Summary."
The Information Inquiry Summary states that the EEO Specialist provided
Complainant with general information about EEO complaint processing
and emphasized the 45-day time limitation period for initiating the EEO
complaint process. At the top of this document, a handwritten statement
reads "45 Days = 15 May 2010," which indicates that Complainant was told
that he had 45 days from March 31, 2010, to initiate the EEO complaint
process.
Upon review, we find that Complainant reasonably relied upon what he
was told by an EEO Specialist on March 31, 2010. Under the doctrine of
equitable estoppel, Complainant's reliance on what he was told on March
31, 2010 precludes the Agency from dismissing Complainant's claim for
initiating EEO Counselor contact by May 15, 2010, the deadline the Agency
communicated to Complainant.1 See Simmons v. Dep't. of the Treasury,
Appeal No. 01963363 (Feb. 26, 1999). The Agency acknowledges that
Complainant initiated the EEO process by Friday, May 14, 2010, one day
before its stated deadline. Complainant's reliance on what he was told
by the Agency on March 31, 2010, was reasonable. Thus, we find that the
Agency is estopped from dismissing Complainant's complaint for untimely
EEO Counselor contact on May 14, 2010.
CONCLUSION
Accordingly, we find that the Agency improperly dismissed Complainant's
complaint for untimely EEO Counselor contact. The Agency's final
decision is REVERSED, and Complainant's complaint is REMANDED for further
processing in accordance with the Orders below.
ORDER (E0610)
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 (K0610)
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 77960, Washington,
DC 20013. 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 (M0610)
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), at 9-18 (Nov. 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
February 4, 2011
Date
1 The Agency began the 45-day time period on March 17, 2010, apparently
acknowledging this as an actual occurrence date.
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2
01-2010-3499
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103499