01A04226_r
02-26-2002
Joyce L. Mason, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Joyce L. Mason v. Department of the Navy
01A04226
February 26, 2002
.
Joyce L. Mason,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A04226
Agency No. 99-00183-004
Hearing No. 120-AO-3095X
DECISION
Complainant filed an appeal with this Commission from a final agency
action pertaining to her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. The Commission accepts the appeal
in accordance with 29 C.F.R. � 1614.405.
Believing that she was the victim of discrimination based on disability,
complainant contacted the EEO office on October 5, 1998. The record
reflects that complainant underwent EEO counseling on the issue that on
April 22, 1997, she had received a nonselection letter from the agency
which stated that she was not qualified for the Radiological Records
Clerk position because she failed to meet the physical requirements
of the position and that the agency could not accommodate her physical
restrictions. On December 2, 1998, complainant filed a formal complaint
that addressed the matters for which she underwent EEO counseling,
discussed above.
At the conclusion of the investigation, complainant requested a
hearing before an EEOC Administrative Judge (AJ) . The record
reflects that on February 11, 2000 and April 11, 2000, two telephone
conferences were convened with complainant's representative and the
agency's representative. The record further reflects that during the
April 11, 2000 telephone conference, the agency representative stated
that the agency would file a Motion to Dismiss based on the grounds
that complainant's initial EEO Counselor contact was untimely, as it
occurred more than forty-five days before complainant first contacted an
EEO Counselor. On April 24, 2000, the AJ granted the agency's Motion
to Dismiss, which was implemented by the agency in its final action.
On appeal, complainant contends that she became aware of the alleged
discriminatory event on September 25, 1998, following a visit to her
representative's office. Moreover, complainant asserts that she was
unaware of the forty-five day limitation period for initiating contact
with an EEO Counselor; that no agency official had ever informed her of
the necessity for contacting an EEO Counselor within forty-five days;
and that she had never had �training in EEO regulations or [the] EEO
complaint filing process.�
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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The record reflects that the alleged discrimatory event occurred on or
about April 22, 1997, but that complainant did not initiate contact with
an EEO Counselor until October 5, 1998, which is beyond the forty-five
(45) day limitation period. Complainant asserts that she was unaware of
the necessity for making timely contact with an EEO Counselor until
September 25, 1998, following a meeting with her representative.
Complainant further asserts that the agency never provided her with
information regarding the relevant time periods for contacting an EEO
Counselor.
The Commission has found that where, as here, there is an issue of
timeliness, an �agency always bears the burden of obtaining sufficient
information to support a reasoned determination as to timeliness.�
Williams v. Department of Defense, EEOC Request No. 05920506 (August 23,
1992). Moreover, we have found that it is incumbent upon an EEO Counselor
to inquire into the reasons for any delay when a complainant ostensibly
initiates EEO counseling beyond the forty-five day limit for doing so.
McDonald v. Department of Transportation, EEOC Request No. 05960642
(August 11, 1998).
We find that the agency did not meet its burden of proving that
complainant knew or should have know about EEO procedure at the time of
the alleged discriminatory event.
Accordingly, the agency's final action is REVERSED. Complainant's
complaint is REMANDED to the agency for further processing in accordance
with the ORDER below.
ORDER
The agency shall request the Hearings Unit of the EEOC's Baltimore
District Office to schedule a hearing on the instant complaint.
The agency is directed to submit a copy of the complaint files to the
EEOC District Office within fifteen (15) calendar days of the date that
this decision becomes final for a decision from an Administrative Judge in
accordance with 29 C.F.R. � 1614.109. 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 EEOC District Office.
After receiving a decision from the EEOC Administrative Judge, the agency
shall issue a decision in accordance with 29 C.F.R. � 1614.110.
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
February 26, 2002
__________________
Date