01A22993_r
03-13-2003
Willie G. Cooks, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Willie G. Cooks v. Department of the Treasury
01A22993
March 13, 2003
.
Willie G. Cooks,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A22993
Agency No. 02-2113
DECISION
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO Counselor contact.
In his formal EEO complaint, complainant alleged that he was subjected
to discrimination on the basis of disability when:
On June 8, 2001, he discovered that unsealed envelopes containing
complainant's medical information were left on his desk; and
On June 22, 2001, he received his annual performance appraisal which
complainant believes did not correctly rate his performance.
The agency dismissed complainant's complaint on the grounds of untimely
EEO Counselor pursuant to 29 C.F.R. � 1614.107(a)(2). Specifically,
the agency found that complainant initiated untimely EEO Counselor
contact on November 5, 2001, which was more than forty-five days after
the alleged discriminatory events raised in the above referenced claims.
In the instant matter, the alleged discriminatory events occurred on June
8, 2001 and June 22, 2001, but complainant did not initiate contact with
an EEO Counselor until November 5, 2001, which is beyond the forty-five
(45) day limitation period. On appeal, complainant indicates that he
was unaware of the time limits for seeking EEO counseling. In addition,
complainant asserts that he was unaware that discrimination had occurred
until after September 20, 2001, when his supervisor did not meet with
him to discuss his appraisal, after previously agreeing to do so.
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.
EEOC Regulations 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.
Here, complainant contends that not only was he unaware of the time
limits for seeking EEO counseling, but that he had no reason to suspect
discrimination until his supervisor failed to meet with him on September
20, 2001. 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. We are not persuaded by complainant's arguments
regarding when he first developed a reasonable suspicion of unlawful
employment discrimination. The record indicates that as early as July
19, 2001, complainant wrote a letter to his supervisor indicating that
he wished to discuss concerns he had with his performance appraisal.
However, complainant also asserts that he was unaware of the 45-day
time limitation for seeking EEO counseling. The agency has provided
the Commission with an affidavit from its EEO manager attesting that EEO
posters are on display throughout complainant's work site. Complainant
contends on appeal, that there were no bulletin boards displaying
EEO posters near his work area. 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. See Thompson v. Department of the Army,
EEOC Request No. 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 that posters on display at
the agency worksite provided specific information regarding the limitation
period for seeking contact with an EEO Counselor. The affidavit from the
agency's EEO manager does not indicate that the EEO posters specifically
contained information regarding the 45-day time limitation for seeking
EEO counseling. Therefore, it is the decision of this Commission to
VACATE the agency's dismissal and REMAND the matter to the agency for
supplementation of the record in accordance with the Order below.
ORDER
The agency is ORDERED to supplement the record with an affidavit or
other statement from individuals who have knowledge of the EEO posters,
attesting to whether posters containing the forty-five (45) time limit
for seeking counseling were posted at complainant's work site during
the relevant time period. The agency shall also supplement the record
with a copy of the relevant EEO poster if it is available. The agency
shall supplement the record with any other evidence regarding the issue
of when complainant had actual or constructive knowledge of the 45-day
time limit for contacting an EEO Counselor. Within thirty (30) calendar
days of the date this decision becomes final, the agency shall issue a
notice that it is accepting the complaint for investigation or issue a
new decision dismissing the complaint.
A copy of the notice of processing or new agency decision 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
March 13, 2003
__________________
Date