01A33114_r
08-28-2003
John E. Hendley, Jr., Complainant, v. Hector V. Barreto, Administrator, Small Business Administration Agency.
John E. Hendley, Jr. v. Small Business Administration
01A33114
August 28, 2003
.
John E. Hendley, Jr.,
Complainant,
v.
Hector V. Barreto,
Administrator,
Small Business Administration
Agency.
Appeal No. 01A33114
Agency No. 02-03-014
DECISION
Complainant filed an appeal with this Commission from an April 9,
2003 agency decision, dismissing his complaint pursuant to 29 C.F.R. �
1614.107(a)(2), for untimely EEO Counselor contact. In his complaint,
complainant alleged that he was discriminated against on the basis of
age when on August 10, 2002, his term appointment was not extended.
In its decision, the agency stated that complainant did not contact an
EEO Counselor until October 11, 2002, which was beyond the requisite
45-day time period. The agency also stated that complainant had a
reasonable suspicion of discrimination as early as August 1, 2002,
when he was informed that his appointment would not be extended.
On appeal, complainant asserts that he was not aware of the time limit
for initiating EEO Counselor contact. He also asserts that he did
not suspect discrimination until September 23, 2002, when he attended a
meeting with an attorney and other complainants whose appointments were
also not extended.
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
alleged discriminatory event. The Commission has adopted a "reasonable
suspicion" standard (as opposed to a "supportive facts" standard) to
determine when the 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 Regulation 29 C.F.R. � 1614.105(a)(2) provides that the time
limit shall be extended if 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 record discloses that complainant was provided notice of the August
10, 2002 expiration of his appointment in an August 1, 2002 letter.
Complainant did not initiate EEO Counselor contact until October 11,
2002, which was more than 45 days from the date of the discriminatory
event, i.e., August 10, 2002. Complainant submitted an affidavit in
support of his assertion that he was not aware of the limitation period.
The agency has provided no evidence showing that complainant had actual or
constructive notice of the time period for contacting an EEO Counselor.
There is no documentation that would indicate whether posters were on
display at complainant's workplace identifying the proper procedures
for EEO Counselor contact and whether the posters were displayed during
the relevant time period. See Moore v. Department of the Treasury, EEOC
Request No. 05980480 (December 21, 2001). Nor has the agency provided
any other evidence showing that complainant was otherwise aware of the
time limitation. Accordingly, the Commission finds that complainant was
not aware of the time limitation. Therefore, the agency decision finding
that complainant's EEO Counselor contact was untimely was improper.
Having decided that complainant was not aware of the time limits,
the issue concerning when complainant should have reasonably suspected
discrimination need not be addressed.
The agency's dismissal of the complaint is REVERSED and the complaint
is REMANDED to the agency for further processing in accordance with the
Order below and applicable regulations.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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 (K0501)
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 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 (M0701)
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), 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 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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 28, 2003
__________________
Date