01A34772_r
12-08-2003
Charles W. Trinca v. Department of Commerce
01A34772
December 8, 2003
.
Charles W. Trinca,
Complainant,
v.
Donald L. Evans,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A34772
Agency No. 01-63-00376D
Hearing No. 130-A3-8083X
DECISION
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO Counselor contact. In his complaint, complainant alleged that he
was subjected to discrimination on the basis of age when:
Complainant, an Automation Technician in the agency's Atlanta Region of
the Census Bureau, did not receive a performance-based award.
The agency's final decision, dated August 4, 2003, fully implemented
the decision (dated July 22, 2003) of the Administrative Judge (AJ),
finding that complainant's EEO Counselor contact was untimely. In his
decision the AJ noted that between July 29, 2000 and September 10, 2000,
the agency issued performance-based awards to Automation Technicians in
the agency's Atlanta Region. The AJ observed that complainant contacted
the agency's EEO office on August 23, 2001. The AJ concluded that
complainant did not make his required EEO Counselor contact within 45
days of when the agency failed to grant him a performance-based award.
On appeal, complainant states that when he initially suspected
discrimination, he contacted the Atlanta Census Office (part of the
agency), which directed him to contact an identified individual at the
Commission's Washington, D.C. Field Office for the purpose of filing
his complaint. Complainant further states that on November 22, 2000,
he submitted by electronic mail message and by facsimile transmission,
his charge of discrimination to the specified contact person at the
Commission.
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. The Commission has previously held that an agency
may not dismiss a complaint based on an complainant's untimeliness,
if that untimeliness is caused by the agency's action in misleading or
misinforming the complainant. See Wilkinson v. United States Postal
Service, EEOC Request No. 05950205 (March 26, 1996).
The record shows that complainant should have reasonably suspected
discrimination by October 26, 2000 (when the agency confirmed that
complainant's name was not submitted for an award and explained why he
did not receive an award). The agency has not shown that complainant
should have reasonably suspected discrimination prior to October 26,
2000. The record further shows that on November 22, 2000, complainant
contacted the EEOC's Washington Field Office as directed by the agency,
which is within the forty-five (45) day limitation period. The agency
has not shown that complainant was not given the advice by the agency to
contact the Commission. The Commission finds, under the circumstances,
that complainant's contact of the Commission was sufficient to constitute
as contact of an EEO Counselor. Dismissal of complainant's complaint
pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO contact is
therefore improper.
Accordingly, the agency's final decision dismissing complainant's
complaint is REVERSED. We REMAND the complaint to the agency for further
processing as directed herein.
ORDER
Within fifteen (15) calendar days of the date this decision becomes final,
the agency shall request that the EEOC's Birmingham District Office
schedule a hearing. The agency is directed to also submit a copy of the
complaint file to the Hearings Unit of the Birmingham District Office
within fifteen (15) calendar days of the date this decision becomes final.
The agency shall provide written notification to the Compliance Officer
at the address set forth below that the request and complaint files have
been transmitted to the Hearings Unit. Thereafter, the Administrative
Judge shall issue a decision on the complaint in accordance with 29
C.F.R. � 1614.109 et seq., and the agency shall issue a final action in
accordance with 29 C.F.R. � 1614.110.
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
December 8, 2003
__________________
Date