01981737
02-24-1999
Howard L. Franklin, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Howard L. Franklin v. Department of the Treasury
01981737
February 24, 1999
Howard L. Franklin, )
Appellant, )
)
v. ) Appeal No. 01981737
) Agency No. 94-1140R
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning 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. Appellant's attorney received the final agency
decision on December 8, 1997. The appeal was postmarked December 23,
1997. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),
and is accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint on the grounds of failure to contact an EEO Counselor in a
timely manner.
BACKGROUND
Appellant initiated contact with an EEO Counselor on May 2, 1994. On June
1, 1994, appellant filed a formal EEO complaint wherein he alleged
that he had been discriminated against on the bases of his sex (male)
and race (black) when he was not selected for a GS-334-5/7/9 Computer
Systems Analyst position pursuant to Vacancy Announcement No. 93-100.
The record reveals that appellant was not among the selectees for ten or
more Computer Systems Analyst positions. The selectees were notified
that they had been selected on January 31, 1994. The agency posted
the selections for the positions on the official bulletin boards on
March 4, 1994. Appellant alleged that he became aware that he had been
discriminated against on March 24, 1994, when he received feedback on
his nonselection. In a letter dated June 24, 1996, appellant's attorney
stated that agency management was responsible for the delay in the EEO
contact. According to the letter, appellant contacted EEO Counselors on
several occasions to file a complaint, but was told that he had to wait
for feedback from the test scores, testing procedures and members on
the ranking panel. Appellant had a feedback interview on March 24, 1994.
In December 1993, appellant signed a petition which claimed that there
were unethical practices by management regarding the written test for
the Computer Systems Analyst positions, and that test answers were
distributed to white employees.
In its previous final decision, the agency dismissed the complaint on
the grounds that appellant failed to contact an EEO Counselor in a timely
manner. The agency stated in its final decision that although appellant
alleged that he contacted an EEO Counselor on several occasions prior to
May 2, 1994, and was informed that he could not file a complaint until
after talking to the Director and/or the Division Chief, appellant failed
to identify the names of the EEO Counselors with whom he had allegedly
spoken or to provide the date of prior alleged contact. The agency
acknowledged that appellant contacted an EEO Counselor in March 1994,
but stated that he did not express an intent to pursue the EEO process
at that time. Thereafter, appellant filed an appeal with the Commission.
On appeal, Howard L. Franklin v. Department of the Treasury, EEOC Appeal
No. 01965675 (July 23, 1997), the Commission vacated the final agency
decision and remanded the complaint for a supplemental investigation.
The Commission ordered the agency to supplement the record with evidence
addressing whether appellant contacted the EEO Office prior to May 2,
1994, and the nature of those contacts. The agency was also instructed
to conduct a supplemental investigation to determine when appellant
learned of his nonselection.
In its subsequent final decision, the agency again dismissed appellant's
complaint on the grounds that he failed to contact an EEO Counselor in a
timely manner. The agency determined that selections for the Computer
Systems Analyst positions were made in January 1994, and that it is
standard operating procedure for the names of selectees to be posted
on bulletin boards by noon of the Friday after selections are made.
According to the agency, appellant's name was submitted to the Personnel
Office on March 8, 1994, as an individual who was not selected and
desired feedback. The agency stated that appellant received feedback on
March 24, 1994. The agency noted that although appellant made vague and
general claims that he contacted an EEO Counselor on several occasions
and was told that he could not file a complaint until after talking
to the Director and/or Division Chief, appellant did not provide the
dates of the alleged contacts nor the names of the EEO Counselors.
According to the agency, the EEO Specialist was unaware of any EEO
Counselor who advised appellant in that manner. The agency determined
that appellant had a reasonable suspicion that the selections were made
near the end of January 1994. The agency further determined that when
the EEO Specialist inquired of the test scores in March 1994, appellant
did not indicate his intention to pursue the EEO counseling process.
On appeal, appellant maintains that he sought to file an EEO complaint
many times prior to the recorded EEO contact date. Appellant argues that
two EEO Counselors informed him that prior to filing an EEO complaint,
he had to wait for feedback from the Personnel Office with regard to
his nonselection, and he had to have a meeting with the Information
Systems Division Chief or the Service Center Director. Further,
appellant contends that the agency improperly conducted its supplemental
investigation. According to appellant, the investigator contacted only
management officials. In support, appellant submits an affidavit from an
agency employee who states that he has witnessed improper EEO counseling
as a complainant and as an employee representative. According to this
employee, the EEO Counselors have deliberately delayed the processing of
complaints by requiring complainants to take preliminary steps before
allowing them to proceed. The employee states that among the improper
tactics used by some EEO Counselors are a failure to record the initial
date that complainants contact the EEO Office; they inform complainants
that they do not have a case or that they can not file an EEO complaint;
they require complainants to meet informally with managerial officials
before allowing them to proceed; and after the informal meetings are
concluded, they will schedule meetings with the complainants and use
the current date as the initial contact date.
ANALYSIS AND FINDINGS
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 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) provides that the agency or the
Commission shall extend the 45-day time limit when the individual shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not have
known that the discriminatory matter or personnel action occurred, that
despite due diligence he or she was prevented by circumstances beyond his
or her control from contacting the counselor within the time limits, or
for other reasons considered sufficient by the agency or the Commission.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the limitation
period was triggered. See Ball v. USPS, EEOC Request No. 05880247
(July 6, 1988). Thus, the limitation period was not triggered until a
complainant should have reasonably suspected discrimination, but before
all the facts that would have supported a charge of discrimination had
become apparent.
The record reveals that the selections for the Computer Systems Analyst
positions were not posted on the agency bulletin board until March 4,
1994. According to the agency, appellant did not initiate contact with
an EEO Counselor for the purpose of utilizing the EEO process until May
2, 1994. Such contact is after the expiration of the 45-day limitation
period. Appellant sought feedback about his nonselection after he was
notified that he had not been chosen. In light of the petition signed
by appellant in December 1993, stating that claims test answers were
distributed to white employees, it appears that appellant developed a
reasonable suspicion of discrimination by the time he learned of his
nonselection. However, the record suggests that the EEO Office may have
taken actions either deliberately or inadvertently that caused appellant
to delay pursuing the EEO process.
According to appellant, the EEO Office instructed him that before he
could file a complaint, he had to wait for feedback from the Personnel
Office about his nonselection, and he had to have a meeting with either
the Information Systems Division Chief or the Service Center Director.
This argument is more credible given that the same argument is also
presented by four other individuals in appellant's office. These
individuals currently have appeals pending decision before the Commission
with regard to nonselections under the same vacancy announcement.<1>
We find further support for this position in the affidavit submitted
by an agency employee who states that he has been a complainant and an
employee representative. This individual described tactics engaged in
by some EEO Counselors that coincide with those referenced by appellant.
Such actions include requiring complainants to meet with managerial
officials before allowing them to proceed with the EEO process, and after
these meetings are concluded, scheduling meetings with complainants that
reflect the current date as the initial contact date. The supplemental
investigation undertaken by the agency does not appear to have focused
on these issues. We are not satisfied that the agency has adequately
refuted the concerns raised by appellant with regard to his contacts
with the EEO Office prior to May 2, 1994.
Upon review of the entire record, we find that although appellant
appears to have had a reasonable suspicion of discrimination when
he learned of his nonselection on March 4, 1994, there is sufficient
reason to believe that appellant may have been delayed in pursuing the
EEO process either deliberately or inadvertently by the EEO Office.
Therefore, we find that sufficient grounds exists for an extension of
the 45-day limitation period. Accordingly, the agency's decision to
dismiss appellant's complaint on the grounds of untimely EEO contact
was improper. The complaint is hereby REMANDED for further processing
in accordance with the ORDER below.
ORDER (E1092)
The agency is ORDERED to process the remanded complaint in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded complaint within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that you
have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
Feb 24, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1EEOC Appeal Nos. 01981734, 01981735, 01981736, and 01981738.