01983571
05-12-1999
Orin I. Tennison, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Orin I. Tennison v. Department of Transportation
01983571
May 12, 1999
Orin I. Tennison, )
Appellant, )
)
v. ) Appeal No. 01983571
) Agency No. DOT-1-98-3016
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
______________________________)
DECISION
On March 31, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on March 23, 1998,
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. In his complaint,
appellant alleged that he was subjected to discrimination on the bases
of national origin (not Hispanic) and age (date of birth April 5, 1945)
when:
On September 8, 1997, appellant was suspended for one day for alleged
physical threats to a supervisor;
Since transferring to San Juan in 1995, appellant has been subjected
to harassment in the form of jokes and comments;
In 1995, appellant was denied the opportunity to compete for an area
supervisor and an area manager position; and
In late 1996, appellant bid on a 120 day detail as Area Manager, but
an Hispanic individual with less experience and qualifications than
appellant was selected.
The agency accepted allegations (1) and (2), but dismissed allegations (3)
and (4) pursuant to EEOC Regulation 29 C.F.R. �1614.107(b), for untimely
counselor contact. Specifically, the agency found that appellant did
not seek counseling until September 30, 1997, but that appellant knew
shortly after each position was filled that he did not receive the
promotions in August 1995, and late 1996.
On appeal, appellant argues, through his representative, that he was
not aware nor notified of the time limits for counselor contact.
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 Ball v. USPS,
EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period
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 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.
It is the Commission's policy that constructive knowledge will be
imputed to an employee when an employer has fulfilled its obligation of
informing employees of their rights and obligations under Title VII.
Thompson v. Department of the Army, EEOC Request 05910474 (September
12, 1991). However, we have held that a generalized affirmation that an
agency posted EEO information, without specific evidence that the poster
contained notice of the time limits, is insufficient for constructive
knowledge of the time limits for EEO Counselor contact. Pride v. USPS,
EEOC Request No. 05930134 (August 19, 1993).
The record contains no evidence of a notice being posted or other
information disseminated at appellant's duty station regarding EEO
time limits. Therefore, the Commission is unable to ascertain whether
appellant had knowledge of the limitations for counselor contact.
Accordingly, the agency's decision to dismiss allegations (3) and (4) is
VACATED, and the allegations are REMANDED for a supplemental investigation
to determine whether appellant had actual and/or constructive knowledge
of EEO time limits.
ORDER
The agency is ORDERED to perform the following:
Conduct a supplemental investigation to determine whether, during
appellant's employment with the agency, the agency posted EEO information
on display, or in some other manner provided EEO information to appellant,
that specifically referred to the time limit for contacting an EEO
Counselor. The agency shall include a copy of the posting or other
information with the present case file.
Obtain an affidavit or statement from responsible agency officials
regarding the posting of EEO information, or dissemination of EEO
information by some other means, and include it with the present case
file.
Gather any other evidence relevant to the issue of whether appellant
had knowledge of the time limitation for contact with an EEO Counselor,
and include such information with the present case file.
Issue a new FAD or notice of processing.
The agency shall complete all of the above actions within forty-five
(45) calendar days of the date this decision becomes final. A copy of
the notice of processing and/or final agency decision 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:
May 12, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations