01a00189
03-24-2000
Donald Barber, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Donald Barber, )
Complainant, )
)
v. ) Appeal No. 01A00190
) Agency No. 99-2356M
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
____________________________________)
DECISION
On October 4, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) issued on September 1, 1999, pertaining
to his complaint of unlawful employment discrimination in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq.; the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq; and Section 501 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1> In his complaint,
complainant alleged that he was subjected to discrimination on the bases
of race (Black), color (Black), sex (Male), age (DOB: September 5, 1952),
and physical disability (Heart) when on October 10, 1997, complainant
was forced to sign a letter of resignation from the U.S. Customs as a
Customs Inspector.
The agency dismissed his complaint pursuant to EEOC Regulation
64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
referred to as 29 C.F.R. � 1614.107(a)(2)). Under this regulation,
the agency shall dismiss a complaint or a portion of a complaint
that fails to comply with the applicable time limits contained in 64
Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter referred
to as 29 C.F.R. � 1614.105), 64 Fed. Reg. 37,644, 37,656 (1999)(to be
codified and hereinafter referred to as 29 C.F.R. � 1614.106), and �
1614.204(c), unless the agency extends the time limits in accordance
with � 1614.604(c).
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO Counselor within 45 days of
the date of the matter alleged to be discriminatory or, in the case of
a personnel action, within 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. � 1614.105(a)(2) allows the agency or the
Commission to extend the time limit if the complainant can establish that
complainant was not aware of the time limit, that complainant did not
know and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence complainant
was prevented by circumstances beyond his control from contacting the
EEO Counselor within the time limit, or for other reasons considered
sufficient by the agency or Commission.
The Commission has adopted a �reasonable suspicion� standard, as opposed
to a �supportive facts� standard, to determine when the limitation period
is triggered. See Ball v. United States Postal Service, EEOC Request
No. 05880247 (July 6, 1988)(interpreting 29 C.F.R. � 1613.214(a)(1)(i)
- the predecessor of 29 C.F.R. � 1614.105(a)(1)).
The EEO counselor's report indicates that complainant contacted an EEO
counselor on June 10, 1999 regarding his claim of discrimination which
occurred on October 10, 1996. On appeal, complainant alleges, through
his representative, that he was not made aware of the timelimits.
Where, as here, there is an issue of timeliness, "[a]n agency always
bears the burden of obtaining sufficient information to support a
reasoned determination as to timeliness." Guy, v. Department of Energy,
EEOC Request No. 05930703 (January 4, 1994). 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. See Gens v. Department
of Defense, EEOC Request No. 05910837 (January 31, 1992). Further,
the Commission imputes constructive knowledge of EEO procedures to an
employee when an agency complies with notice posting requirements. The
agency was required to produce evidence that it took sufficient actions
to justify the inference of constructive knowledge. The Commission has
held that blanket conclusions, without supporting affidavits or other
evidence, were insufficient to demonstrate the agency had complied with
posting requirements and it declined to impute knowledge of the EEO
complaint process to the employee. Thompson v. Department of the Army,
EEOC Request No. 05910474 (September 12, 1991).
Upon review of the record, we find that the agency failed to include
postings or notices regarding the EEO process and the time limitations.
In addition, the agency failed to include any other evidence, such as
affidavits, which would prove that there were EEO postings in prominent
locations at the time of alleged incidents. The Commission finds that
the agency has not carried its burden. Accordingly, the Commission
REVERSES the agency's decision to dismiss complainant's complaint and
REMANDS it to the agency for further processing in accordance with this
decision and the Order below.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 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 an
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 (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 24, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On 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.