Charles W. Trinca, Complainant,v.Donald L. Evans, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity CommissionDec 8, 2003
01A34772_r (E.E.O.C. Dec. 8, 2003)

01A34772_r

12-08-2003

Charles W. Trinca, Complainant, v. Donald L. Evans, Secretary, Department of Commerce, Agency.


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