01995698
07-13-2000
James Edwards, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
James Edwards v. Department of Veterans Affairs
01995698
July 13, 2000
James Edwards, )
Complainant, )
)
v. ) Appeal No. 01995698
) Agency No. 991519
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
____________________________________)
DECISION
INTRODUCTION
Complainant filed a timely appeal with this Commission from the final
agency decision dated June 11, 1999, dismissing his complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>
The Commission accepts the appeal in accordance with 64 Fed. Reg. 37,
644, 37, 659 (1999)(to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed complainant's
complaint for untimely EEO Counselor contact.
BACKGROUND
Complainant contacted the EEO Counselor on January 8, 1999, and filed
a formal complaint on February 8, 1999, alleging non-selection for
a promotion in violation of the ADEA. In his complaint, complainant
alleged that he was subjected to discrimination on the basis of age (DOB:
8/15/44) when: on October 15, 1998, and November 17, 1998, he was not
promoted to a full-time position in the Food Production Service after
management told complainant he would be promoted within sixty days.
In a final agency decision, the agency dismissed complainant's claim
pursuant to EEOC Regulation 29 C.F.R. � 1614.105(a)(1) for failing to
initiate contact with an EEO Counselor within forty-five days of the
alleged discriminatory event.
ANALYSIS AND FINDINGS
The EEOC Regulation set forth at 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 at 29 C.F.R. � 1614.105(a)(2) further 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 present case, complainant and his representative met with
management to discuss a promotion from his part-time status to a full-time
employee on October 15, 1998, and November 17, 1998.<2> Prior to
the meeting, complainant was not selected for this promotion when two
positions for Food Service Worker were filled by employees considerably
younger than the complainant. According to the EEO Counselor's Final
Report, complainant contends that management committed to converting
his position to a full-time status within sixty (60) days of meeting
with management.
The Commission considers sixty days past complainant's meetings in
October and November of 1998 the dates of the discriminatory events
since his actionable claim stems from management's alleged unfulfilled
promise to promote him to full-time status. We find that the final
agency decision improperly uses February 1, 1998, the day complainant
was notified of his non-selection, as the discriminatory date used to
determine the onset of the forty-five day period. The Commission thus
finds that complainant could not reasonably suspect discrimination for
non-promotion until after the expiration of sixty days, falling in either
mid-December 1998 or January 1999.<3> Therefore, we find complainant's
contact with an EEO Counselor in early January 1999 timely.
CONCLUSION
The Commission finds the agency's decision dismissing the complaint
for untimely EEO Counselor contact improper and we hereby REVERSE the
decision. The complaint is REMANDED to the agency for further processing
in accordance with this decision and the Order below.
ORDER (E0400)
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 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 (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
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
07-13-00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.
2 The EEO Counselor's report documents that complainant and his
representative met with the Chief of Food Production Section on the
aforementioned dates in October and November to discuss his promotion.
The FAD fails to deny complainant's belief that management promised to
promote him to a full-time position within sixty days of the meeting.
3 The expiration of sixty days could be calculated from either the
initial meeting with management in October, or the second meeting in
November. The Commission finds it irrelevant whether it was the first
or second meeting in which management committed to promote complainant
within sixty days because both time frames are within the forty-five
day limit to contact an EEO Counselor.