01a00530
02-18-2000
Joe D. Moore, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Joe D. Moore, )
Complainant, )
)
v. ) Appeal No. 01A00530
) Agency No. 980660
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
____________________________________)
DECISION
On October 12, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) issued on August 12,
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. and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1> The Commission
accepts complainant's appeal in accordance with EEOC No. 960.001.<2>
ISSUE PRESENTED
The issue presented herein is whether the agency properly dismissed the
present case for untimely EEO counselor contact.
BACKGROUND
The record reflects that on January 29, 1998, complainant initiated
contact with an EEO Counselor. During the counseling period, complainant
states that his GS level did not properly reflect his duties that were
evaluated in October 1996. The record indicates that complainant received
notice of his GS level in March 1997, which he claims is incorrect.
Counseling failed, and on May 12, 1998, complainant filed a formal
complaint claiming that he was the victim of unlawful employment
discrimination on the bases of his race (white), gender (male) and age
(over-forty). The complaint was comprised of the matters for which
complainant underwent EEO counseling, discussed above.
On August 12, 1999, the agency issued its final decision dismissing the
present case for failure to initiate timely contact with an EEO counselor.
Specifically, the agency determined that the alleged discriminatory
event occurred in March 1997, and complainant's initial EEO contact on
January 29, 1998 occurred more than forty-five days after the purported
event occurred.
On appeal, complainant concedes that his initial EEO contact was
untimely, but he offers that he feared reprisals from management; he
was not provided information; and he was told that he would not receive
information pertaining to his desk audit.<3>
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 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.
However, 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) (quoting Williams
v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992)).
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 also Gens v. Department of Defense,
EEOC Request No. 05910837 (January 31, 1992).
In the present case, the agency has failed to supply sufficient evidence
to support its decision. Specifically, in a decision dismissing a
complaint for untimely EEO Counselor contact, it is essential that the
agency initially establish that the complainant previously engaged the
EEO process or he was aware of the forty-five day limitations period.
This should be accomplished by establishing that the agency conspicuously
posted the EEO guidelines for all employees to see, or by demonstrating
that the complainant filed previous EEO complaints. In this case, the
record is void of any evidence that the complainant was made aware of
the limitations period in which an aggrieved must initiate contact with
an EEO Counselor or that he had previous involvement in the EEO process.
Therefore, the agency failed to support its decision.
CONCLUSION
For the reasons set forth herein, the Commission hereby REVERSES the
decision of the agency dismissing the present complaint for failure to
initiate timely contact with an EEO Counselor. Accordingly, the present
complaint is REMANDED to the agency for further processing in accordance
with this decision and applicable regulations.
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 (M1199)
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). 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:
February 18, 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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant1On 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.
2Since the agency did not supply a copy of a certified mail return
receipt or any other material capable of establishing the date complainant
received the agency's dismissal, final action or decision, the Commission
presumes that complainant's appeal was filed within thirty (30) days
of receipt of the agency's dismissal, final action or decision. See,
64 Fed. Reg. 37,644, 37,659 (1999)(to be codified and hereinafter cited
as 29 C.F.R. � 1614.402).
3On December 2, 1999, the complainant submitted an addendum to his
appeal statement. The Commission will not consider the addendum because
it was submitted after the 30 day limitations period expired pursuant
to 64 Fed. Reg. 37,644, 37,659 (1999) (to be hereinafter codified at 29
C.F.R. 1614.403(d)) which provided, in relevant part, that any statement
in support of complainant's appeal must be submitted within 30 days from
filing the notice of appeal.