0120113204
11-25-2011
_____________________, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, (Food and Drug Administration) Agency.
_____________________,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
(Food and Drug Administration)
Agency.
Appeal No. 0120113204
Agency No. HHSFDACDER04111F
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated May 17, 2011, dismissing his 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Senior Medical Analyst at the Agency’s Center for Drugs and
Evaluation facility in Silver Spring, Maryland. He was first hired in
January 2009, and a year later transferred to the Division of Metabolism
and Endocrinology Products (DMEP) where the events at issue arose.
On February 17, 2011, Complainant initiated EEO counseling and, on
April 18, 2011, Complainant filed a formal complaint alleging that the
Agency subjected him to discrimination on the basis of sex (male) when:
(1) his supervisor, the DMEP Deputy Director, did not provide him with
comparable training, guidance, instruction and access to meet with him
as that provided to female colleagues, and (2) he was terminated from
his position effective December 22, 2010.1
The Agency dismissed the complaint, pursuant to 29 C.F.R. §�
�1614.107(a)(2), for untimely EEO Counselor contact. The instant appeal
followed.
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 time limit to seek EEO counseling shall be extended when an individual
shows he was not notified of the time limit and was not otherwise aware
of it. 29 C.F.R. § 1614.105(a)(2).
In this case, Complainant asserts that he had no knowledge of his right
to file an EEO complaint over his termination, much less the applicable
time limitations. He states he learned about his rights from a friend,
and initiated contact with the EEO office on the same day as he learned
of its existence.
It is the Commission's policy that constructive knowledge of the time
limit will be imputed to an employee when an employer has fulfilled its
obligation of informing employees of their rights and obligations under
EEOC's regulations. Thompson v. Department of the Army, EEOC Request
No. 05910474 (Sept. 12, 1991). The Agency has the burden of producing
sufficient evidence to show it fulfilled its duty of conspicuously
posting EEO information or that it otherwise notified Complainant of
his rights. An example of such proof is an affidavit by an EEO official
stating that that there were unobstructed posters with EEO information,
including the 45-day time limit to contact an EEO counselor, posted in
the facility where Complainant worked and identifying the periods of
posting accompanied by a copy of the poster. As well, an agency can
provide documentation that the complainant took EEO training where the
45-day time limit was covered. However, in the instant case, no such
evidence has been provided by the Agency. Therefore, Complainant’s
assertions that he had no knowledge of the applicable limitation period
remains unrebutted and his less than two week delay in contacting a
counselor is excused.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is REVERSED and the complaint is REMANDED to the Agency for
further processing in accordance with the following Order.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance
with 29 C.F.R. § 1614.108 et seq. 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 (K0610)
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 77960, Washington, DC
20013. 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 (M0610)
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), at 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
77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
November 25, 2011
__________________
Date
1 In its dismissal decision, the Agency indicates Complainant also
raised religion as a basis of the alleged discrimination. However, an
examination of the formal complaint and related EEO counseling materials
reveals no indication that Complainant intended to raise religion as a
basis of his claim of discrimination.
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0120113204
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113204