01991295_r
11-05-1999
Charles G. Campbell, Appellant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Charles G. Campbell, )
Appellant, )
)
v. ) Appeal No. 01991295
) Agency No. 98-1406
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
______________________________)
DECISION
On November 27, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on November 2, 1998,
pertaining to his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq. In his complaint,
appellant alleged that he was subjected to discrimination on the bases
of race (Caucasian), gender (male), age (date of birth November 3, 1948),
and in reprisal for prior EEO activity when:
On May 7, 1998, management did not select appellant for the position of
Management/Program Analyst (Staff Assistant), GS-343-13, under Vacancy
Announcement No. 98FK632N;
On May 4, 1998, management issued appellant a Memorandum of Contact
which addressed appellant's conduct on April 28, 1998; and
On December 21, 1997, management reassigned appellant from the
position of Chief, Operations Section, GS-342-13, to the position of
Management/Program Analyst, GS-343-13.
In a notice of processing, dated October 29, 1998, the agency accepted
allegations (1) and (2). In its FAD, also dated October 29, 1998,
the agency dismissed allegation (3) pursuant to EEOC Regulation 29
C.F.R. �1614.107(b), for untimely counselor contact. Specifically,
the agency found that appellant did not seek counseling until May 6,
1998, although he was non-competitively reassigned on December 21, 1997.
On appeal, appellant argues, through his attorney, that he was reassigned
to the Management/Program Analyst position, but was told that he was only
being detailed to the position for 120 days, effective December 19, 1997.
Appellant contends that he was to return to his Operations Section Chief
position upon completion of the detail. Appellant attached an affidavit
to his appeal, in which he claims that he never received an SF-50 or
other notice of permanent reassignment, but did receive an SF-50 for
the detail. Appellant also enclosed a memorandum addressed to the EEO
Counselor, dated July 9, 1998, memorializing his arguments.
In response, the agency contends that appellant began his detail on
December 2, 1997, initiated by a Form SF-52. The agency argues that
it permanently reassigned appellant on December 21, 1997, and gave him
a position description (PD) for his new position on December 3, 1997.
According to the agency, appellant's receipt of the PD should have raised
a reasonable suspicion of discrimination.
The record includes a copy of the PD, and a separate, signed
acknowledgment that appellant received the PD on December 3, 1997.
The PD does not mention the duration of appellant's assignment in the
Management/Program Analyst position.
The record includes two separate documents concerning appellant's
conversion to a permanent Management/Program Analyst. One was a
non-competitive reassignment form, dated December 19, 1997. The other, a
Form SF-52, requested appellant's detail to the subject position effective
December 21, 1997, not to exceed April 12, 1998. Neither document
contains a signature or other proof of appellant's receipt or review.
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 Ball v. United
States Postal Service, EEOC Request No. 05880247 (July 6, 1988). Thus,
the limitations period 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.
Where, as here, timeliness is at issue, "[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 (Jan. 4, 1994) (quoting Williams v. Department of
Defense, EEOC Request No. 05920506 (Aug. 25, 1992)). In addition, in
Ericson v. Department of the Army, EEOC Request No. 05920623 (Jan. 14,
1993), the Commission stated that the agency has the burden of providing
evidence and/or proof to support its final decisions. See also Marshall
v. Department of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991);
Gens v. Department of Defense, EEOC Request No. 05910837 (Jan. 31, 1992).
Appellant contends that he had no notice that his detail was being
converted to a permanent position. Although appellant received the PD
prior to his position being converted, this, by itself, does not notify,
or even imply that the agency would convert his detail to a permanent
position. Further, the agency has been unable to provide any evidence
that appellant received such notice. Without notice of the reassignment,
appellant would not have had reason to suspect discrimination regarding
his reassignment until, at the earliest, when he was not returned to his
regular position at the end of the scheduled detail on April 12, 1998.
Therefore, appellant's EEO contact on May 7, 1998, was within 45 days of
when he first would have been aware of the alleged discriminatory action,
i.e., his permanent reassignment. Therefore, the Commission finds that
the agency's dismissal was improper.
CONCLUSION
Accordingly, the agency's decision is REVERSED, and the allegation is
REMANDED for further processing.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations 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 acknowledgment 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:
November 5, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations