01991912_r
04-18-2002
Cheong J. Chon, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Intelligence Agency). Agency.
Cheong J. Chon v. Department of Defense
01991912
April 18, 2002
.
Cheong J. Chon,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Intelligence Agency).
Agency.
Appeal No. 01991912
Agency No. 98-DA-01
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.
The record reflects that complainant filed a formal complaint, alleging
that she was the victim of unlawful employment discrimination regarding
a performance appraisal for the period ending March 31, 1997. The agency
dismissed the complaint on the grounds of untimely EEO Counselor contact,
finding that complainant's initial EEO Counselor contact of August 6,
1997, was more than forty-five days after the alleged discriminatory
event. On appeal, complainant asserted that on June 19, 1997, she had a
discussion with an agency official [Person A] regarding pursuit of the
EEO complaint process.
Previously, in Chon v. Department of Defense, EEOC Appeal No. 01982200
(November 12, 1998), the Commission determined that complainant may
have been misled about her EEO rights by Person A during the June 19,
1997 discussion. The Commission further determined that complainant
may not have been aware of the forty-five-day limitation period for
contacting an EEO Counselor, based on statements complainant made
on appeal. The Commission therefore vacated the agency's dismissal
of the instant complaint, and remanded the complaint to the agency.
The agency was ordered to supplement the record with evidence showing
when complainant received a final performance appraisal; and an affidavit
from Person A addressing the nature of the purported conversation with
complainant on June 19, 1997. The agency was also ordered to investigate
the issue of whether complainant had actual or constructive knowledge of
the forty-five-day limitation period. Finally, the agency was ordered
to either issue a new final decision, or investigate the complaint.
In compliance with the EEOC order the agency supplemented the record
with an affidavit from Person A addressing the nature of the purported
conversation she had with complainant on June 19, 1997; evidence
regarding whether EEO posters were posted at complainant's work place
informing complainant's of the time limits to contact an EEO Counselor;
and evidence relating to complainant's receipt of the final performance
appraisal.
On December 7, 1998, the agency issued the final decision that is
the subject of the instant appeal. Therein, the agency dismissed the
complaint on the grounds that on June 17, 1997, complainant received
her final performance appraisal for the period April 1, 1996 to March
31, 1997, and that she did not contact an EEO Counselor on that matter
until August 6, 1997, which is 50 days from the date that she purportedly
received her appraisal.
After review of the record, the Commission finds that EEO posters were
posted at complainant's work place and that complainant had actual
or constructive knowledge of the 45-day time limit to contact an EEO
Counselor. Moreover, the record contains the affidavit of an agency
EEO official regarding a June 19, 1997 conversation with complainant.
The affidavit supports a determination that complainant was not misled
regarding pursuit of the EEO complaint process.
Nevertheless, the Commission determines that the record supports a
finding that complainant did not receive a complete final performance
appraisal for the period April 1, 1996, to March 31, 1997, until June
24, 1997. Specifically, the record contains an e-mail message from
complainant to a Human Resources official dated June 23, 1997, wherein
complainant acknowledged receipt of a performance appraisal on June
17, 1997. Complainant indicated, however, that she discovered that the
appraisal contained no documents attached by her Supervisor, as indicated
in the appraisal; and that her Supervisor acknowledged this omission
and indicated that he would get back to her.<1> Complainant indicated
that under these circumstances, she was requesting an extension of an
agency ten-day limitation period for reconsideration of the appraisal.
The record reflects that the Human Resources official stated that such
an extension was granted. Finally, the record contains an e-mail from
complainant to the Human Resources official date June 24, 1997, wherein
complainant acknowledged that she had finally received the attachments
to her appraisal.
Where, as here, there is an issue of timeliness, � an agency always bears
the burden of obtaining sufficient information to support a reasoned
determination as to the 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)). In addition,
in Ericson V. Department of the Army, EEOC Request No.05920623 (January
14, 1993), the Commission stated that �the agency has the burden of
providing evidence and/or proof to support its final decisions.�
After a review of the record the Commission finds that complainant
received the completed copy of her performance apprisal on June 24, 1997,
and that her initial EEO Counselor contact on August 6, 1997, was within
forty-five days of June 24, 1997, and was therefore timely. The agency's
final decision to dismiss the complaint is REVERSED and the complaint
is REMANDED to the agency for further processing as ordered below.
ORDER (E0900)
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 (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
April 18, 2002
__________________
Date
,
1A copy of the performance appraisal submitted by complainant on appeal
contains the following notation from the reviewing official �supervisor
comments attached.�