0120170271
02-24-2017
Felton A.,1 Complainant, v. Dana J. Boente, Acting Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Felton A.,1
Complainant,
v.
Dana J. Boente,
Acting Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120170271
Hearing No. 570-2014-01110X
Agency No. FBI-2013-00224
DECISION
Complainant timely appealed to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's September 28, 2016 dismissal of his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for the position of Electronics Technician at the Agency's facility in Atlanta, Georgia.
On August 26, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of disability, and being regarded as disabled,2 when, on April 19, 2013, he was notified that his conditional offer of employment into the position of Electronics Technician ("ET") was rescinded.
In or around December 2012, Complainant interviewed for an ET position with the Agency. He received a conditional offer, pending a medical evaluation in accordance with his preferred hiring status as a disabled veteran. The Agency's Chief Medical Officer ("CMO") obtained Complainant's medical records from the Veterans Administration ("VA"), and determined that "having been diagnosed with fibromyalgia, vertigo, anxiety and depression...the position of ET could possibly aggravate, accelerate, exacerbate, or permanently worsen [Complainant's] condition." CMO also noted the ET position Complainant applied for required more strenuous activity than some other ET positions, because it involved mostly field work. The Agency rescinded the conditional employment offer by letter to Complainant dated April 19, 2013.
On April 27, 2013, Complainant received the rescission letter, which provided that his medical history caused him to be "unable to safely perform the essential functions" of the ET position. Complainant contends that he was fully capable of performing ET work, noting that he had previously held the position and had over a decade of ET experience. Complainant also felt he was an excellent fit for this ET position in particular based on his interview with the supervisor. He also disputes the vertigo diagnosis cited as one of the conditions disqualifying him for the ET position. Complainant appealed the rescission of his job offer with the Office of Personnel Management ("OPM").
On June 19, 2013, OPM issued its decision concurring with the Agency's finding that he was not qualified for the ET position due to his medical condition. Complainant did not receive the letter until July 27, 2013, because OPM initially sent it to the wrong address. However, within a week of receiving OPM's decision, Complainant initiated EEO counseling on August 1, 2013. Subsequently, the instant EEO complaint was accepted by the Agency for investigation.
At the conclusion of the investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge ("AJ"). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's motion to dismiss the complaint, pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO counselor contact. The Agency subsequently issued a final order adopting the AJ's finding. The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states, in relevant part, that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105. Under �1614.105(a)(1), an aggrieved person must initiate contact with an EEOC 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.
Here, the AJ found that the 45-day limitation period was triggered when Complainant received the letter rescinding his job offer on April 27, 2013. However, Complainant did not request EEO counseling until August 1, 2013, beyond the required 45-day period. The AJ reasoned that "[Complainant] does not assert that he was not aware of the limits and requirements [of the EEO process] but merely argues that he was pursuing rights with OPM during that time." She further explained that pursing another administrative process (such as an OPM appeal) does not justify an extension of the 45 day time limitation to contact an EEO counselor. As already noted, the Agency adopted the AJ's decision in its final order.
However, we find that while he may not have made an express "assertion," a fair reading of the record provides that Complainant did indicate to the Agency that he did not know about the 45 day limitation period to contact an EEO counselor. Complainant, as an applicant for employment, did not have an opportunity to review EEO materials and receive EEO training from the Agency prior to the alleged discriminatory action. Under the circumstances, Complainant's explanation that he was waiting for OPM to issue a decision on the recission so that he could bring an EEO complaint demonstrates of lack of knowledge of the EEO process. Further, we note that Complainant contacted an EEO counselor only four days after he received the decision from OPM, the point he believed triggered his obligation to initiate the EEO complaint process.
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. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of Defense, EEOC Request No. 05920506 (Aug. 25, 1992)). In addition, the agency has the burden of proving evidence and/or proof to support its final decisions. Clay W. v. Dep't of the Interior, EEOC Appeal No. 0120161461 (Jun. 7, 2016) quoting Ericson v. Dep't of the Army, EEOC Request No. 05920623 (Jan. 14, 1993). In instances where an agency does not have evidence to support the complainant's actual or constructive knowledge of the limitation period for contacting an EEO counselor, as is the case here, a complainant's assertion that he or she did not know about the time limit is sufficient to reverse a dismissal based on untimely EEO contact. See Clay, supra.
On appeal, the Agency alternately argues for us to dismiss Complainant's complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1). However, the Agency's argument is based on its the reason for rescinding the offer - that both the Agency's medical expert and OPM determined that Complainant could not perform the duties of the ET position due to his medical conditions. This goes to the merits of Complainant's complaint, and is irrelevant to the procedural issue of whether Complainant stated a justiciable claim. See Ray v. United States Postal Service, EEOC Appeal No. 0120083541 (Jul. 26, 2012), citing Osborne v. Dep't Treasury, EEOC Request No. 05960111 (July 19, 1996).
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED.
The complaint is hereby REMANDED to the Agency for further processing in accordance with this decision and the Order below.
ORDER
The Agency shall submit to the Hearings Unit of the EEOC's Miami District Office a new request for a hearing, as well as the complaint file and a copy of the instant decision, within thirty (30) calendar days of the date this decision is issued. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has 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, and the Agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
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 (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
February 24, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Although the Agency's framing of the complaint does not also include the discriminatory basis of being "regarded as" having a disability, Complainant expressly raised this basis in his formal complaint and repeatedly throughout the record by contesting the diagnosis of vertigo, cited in the rescission letter, as one of the medical conditions precluding his hiring by the Agency.
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