01992145
03-29-2000
Don Glenn, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Don Glenn, )
Complainant, )
)
v. ) Appeal No. 01992145
) Agency No. 980714
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
______________________________)
DECISION
The Commission finds that the agency's December 18, 1998 decision
dismissing the complaint on the grounds of untimely EEO Counselor contact,
is not proper pursuant to the provisions of 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified and hereinafter referred to as 29
C.F.R. �1614.107(a)(2)).<1>
The record shows that Complainant sought EEO counseling on March 4, 1998,
alleging that he had been discriminated against on the bases of sex (male)
and race (White) when on December 19, 1997, he was not selected for an
Apprentice Firefighter permanent position, GS-462-4, advertised under
vacancy announcement number RAP5-009-97-R05F05A. Complainant subsequently
filed a formal complaint of discrimination regarding this issue.
The agency issued a final decision dismissing the complaint on the basis
of untimely EEO counselor contact after finding that Complainant had
failed to seek EEO counseling within the 45-day time limit provided by
EEOC Regulations. The agency noted that Complainant sought EEO counseling
�74 days from the date of the notification letter�. The agency further
noted that at the station where Complainant works �four bulletin boards
are used to post EEO and civil rights information�.
On appeal, Complainant makes four arguments. First, he did not receive
the December 19, 1997 notification of non-selection until January 4, 1998,
when he returned from his vacation. Second, he was aware of the alleged
discrimination against him the instant �[he] found out who received the
positions�. Third, at that time he then contacted his supervisor to
find out what action he should take and after being unable to contact
his supervisor, he then spoke to his union representative on February
4, 1998, who advised him to seek EEO counseling. Finally, Complainant
claims that he was unaware of the 45-day time limit because he does
�not work out of the main office and usually [is] only there for a very
short time 1-2 days a week to do [his] time on the computer ... [his]
duty station is approximately 1 mile away from the Ranger station and
there is no EEO information posted there�.
The record shows that Complainant claims that he did not receive the
notification of non-selection until he returned from his vacation on
January 4, 1998. He further contends that when he found out who the
selectees were he �instantly felt� that he had been discriminated against.
Complainant further claims that he then sought his supervisor's guidance
and the advice of his union representative. We have previously held
that internal appeals or informal efforts to challenge an agency's
adverse action do not toll the running of the time limit to contact
an EEO counselor. See Hosford v. Department of Veterans Affairs, EEOC
Request No. 05890038 (June 9, 1989).
Complainant acknowledges that on February 4, 1998, his union
representative advised him to seek EEO counseling. The record shows that
after receiving such advice Complainant still waited four (4) weeks to
seek EEO counseling. Nevertheless, Complainant claims that because he
only works at the main office �1-2 days a week� and since there are no EEO
posters at his work location, he was unaware of the 45-day time limit.
The Commission applies a "reasonable suspicion" standard to the triggering
date for determining the timeliness of the contact with an EEO counselor .
Cochran v. United States Postal Service, EEOC Request No. 05920399 (June
18, 1992). Under this standard, the time period for contacting an EEO
counselor is triggered when the complainant should reasonably suspect
discrimination, but before all the facts that would support a charge
of discrimination may have become apparent. Id.; Paredes v. Nagle,
27 FEP Cases 1345 (D.D.C. 1982).
Nevertheless, the Commission has also consistently held that where
there is an issue of timeliness, the agency always bears the burden of
obtaining sufficient information to support a reasoned determination
as to timeliness. Williams v. Department of Defense, EEOC Request
No. 05920506 (August 25, 1992). Here, the record shows that the agency
has not provided any evidence to show that Complainant was, or should
have been, aware of the 45-day time limit, except for a statement in its
final decision that four bulletin boards are used to display EEO and civil
rights information. The agency has failed to provide independent evidence
of such posting, i.e., affidavit by an appropriate agency official.
Moreover, assuming arguendo that complainant was aware of the 45-day
limitation period, we are unable to ascertain whether complainant
contacted an EEO Counselor within 45 days of the date he first developed
a reasonable suspicion of unlawful employment discrimination. We note
specifically that on appeal, complainant argues that he received a notice
of non-selection upon his return from a vacation, on January 4, 1998;
and that when he learned who received the positions for the wildland
firefighter program, he �instant felt [that he] had been discriminated
against.� However, the record is unclear as to the date complainant
�instantly felt� discrimination, and whether complainant's initial EEO
Counselor contact in March 1998 was timely.
In summary, because we are unable to ascertain whether complainant was
actually or constructively on notice of the 45-day limitation period;
and because we are also unable to ascertain when complainant developed a
reasonable suspicion of discrimination, the agency's decision to dismiss
the complaint is VACATED. Complainant's complaint is REMANDED to the
agency for further processing in accordance with the ORDER below.
Accordingly, the complaint was improperly dismissed on the basis of
untimely EEO counselor contact and is hereby VACATED. The complaint
is REMANDED for a supplemental investigation in accordance with this
decision and applicable regulations.
ORDER
The agency is ORDERED to take the following action:
1. The agency is ORDERED to conduct a supplement investigation to
ascertain whether complainant had been informed of the necessity for
initiating contact with an EEO Counselor and the time limits for doing
so, and when and how complainant had been so informed.
2. The agency is further ORDERED to provide complainant with the
opportunity to submit information regarding the exact date that he
became aware that he was the victim of discrimination due to his
non-selection for the position at issue in the instant complaint;
the information he received that caused him to believe that he was the
victim of discrimination; and how the information triggered a suspicion
of unlawful employment discrimination.
Within thirty (30) days of the date that this decision becomes final,
the agency shall notify complainant that he has fifteen calendar days
from the date of his receipt of the agency's notification to provide the
agency with information listed in provision 2 above. The agency shall
have thirty calendar days from the date of its receipt of complainant's
response to issue a final agency decision or to notify complainant that
the agency is processing his complaint.
A copy of the agency's notice to complainant requesting the supplemental
information outlined in this ORDER, as well as a copy of the new final
agency decision and/or notice of processing must be sent to the Compliance
Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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
(R1199)
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:
March 29, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
________ _________________________________
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.