0120150791
05-07-2015
Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0120150791
Agency No. HS-CBP-018262014
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated December 15, 2014, dismissing his 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as an Agricultural Specialist in Miami, Florida. On October 23, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of sex (male), disability, and age (55).
In its final decision, dated December 15, 2014, the Agency determined that Complainant's complaint was comprised of the following claim:
On June 13, 2014, [Complainant] was issued a letter of reprimand for failure to follow instructions and unprofessional conduct.
The Agency dismissed Complainant's complaint for untimely EEO Counselor contact. The Agency reasoned that Complainant did not initiate EEO contact until August 8, 2014, which was 11 days beyond the July 28, 2014 deadline.
The instant appeal followed. On appeal, Complainant includes a declaration under penalty of perjury. Therein, he asserts that he contacted an EEO Counselor (EEO1) on July 3, 2014, using his personal cell phone and left a voicemail message. Complainant further asserts that he contacted EEO1 twice in mid-July using a work phone; however, the EEO Counselor did not answer and he again left messages both times. Complainant asserts he finally reached an EEO Counselor on August 8, 2014.
ANALYSIS AND FINDINGS
We find that the Agency improperly dismissed Complainant's complaint for untimely EEO Counselor contact. 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.
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.
In the instant matter, we find that Complainant initiated EEO contact on July 3, 2014 when he contacted EEO1, an Agency official logically connected to the EEO process with the intent to pursue the EEO process. Complainant in a declaration under penalty of perjury asserts that he contacted EEO1 on July 3, 2014, using his personal cell phone and left a message, but did not receive a call back from EEO1. While EEO1 states in an email that he has no recollection or record of receiving a call on July 3, 2014 from Complainant, we are not persuaded by EEO1's assertion. The record contains a copy of Complainant's cell phone bill reflecting that he placed a two minute call to EEO1's phone number on July 3, 2014. The Agency does not provide an explanation with respect to Complainant's phone call on July 3, 2014.
To the extent the Agency asserts, in response to Complainant's appeal, that Complainant should have used one of the two methods for initiating EEO contact set forth on Agency posters: 1) using a designated email address for the Agency EEO Office or 2) contacting a designated toll free number (rather than contacting EEO1), we are not persuaded by this assertion because the record reflects that EEO1 is an Agency official logically connected to the EEO process. The record contains a copy of the letter of reprimand at issue. The letter provides both a toll free number and EEO1's number for Complainant to contact regarding EEO matters. In addition, in a declaration under penalty of perjury from EEO1 dated January 13, 2012, EEO1 asserts that he is Diversity and Civil Rights Officer and his duties include, in pertinent part, providing EEO Counseling to employees who believe they have been subjected to discrimination. On August 8, 2014, Complainant sent an email to the EEO Office entitled "EEO Follow Up." Therein, Complainant stated that he was following up an informal complaint and that he had contacted EEO1 by phone and had yet to receive a return call. Based on the foregoing, we find that Complainant initiated EEO contact on July 3, 2014, when he attempted to contact EEO1 by phone, which is within the applicable time period.
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint and we REMAND this matter to the Agency for further processing in accordance with the Order 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 (November 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
May 7, 2015
__________________
Date
2
0120150791
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120150791