Albert E. Woods, Appellant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJan 28, 1999
01981792 (E.E.O.C. Jan. 28, 1999)

01981792

01-28-1999

Albert E. Woods, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Albert E. Woods v. Department of Veterans Affairs

01981792

January 28, 1999

Albert E. Woods, )

Appellant, )

)

v. ) Appeal No. 01981792

)

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

)

DECISION

The Commission finds that the agency's November 28, 1997 decision

dismissing appellant's complaint on the basis of untimely EEO counselor

contact, is not proper pursuant to the provisions of EEOC Regulation 29

C.F.R.�1614.107(b).

Appellant sought EEO counseling on March 5, 1997, alleging that he had

been discriminated against on the bases of sex (male) and age (none

specified) when on August 20, 1996, the agency failed to reassign him

and promote him. The agency issued a final decision dismissing the

complaint on the grounds of untimely EEO counselor contact after finding

that appellant's initial EEO counselor contact on March 5, 1997, had been

untimely. The agency further found that although appellant alleged that

he was unaware of the 45-day time limit for initiating EEO counseling,

the record showed that he had been provided with EEO training in August

1993, and December 1996.

On appeal, appellant contends that he had "no counseling nor adequate

knowledge of the proper filing procedures dealing with discrimination

matters". Appellant further contends that he tried to contact several

EEO counselors between July 1996, and September 1996, but that they were

busy and kept on referring him to other counselors. Finally, appellant

provides copy of a letter dated August 26, 1996, in which he informed

the Chief of Human Resources that "there was possible bias in selection

process based on favoritism and preselection". Appellant claims that

he wrote this letter following the advice of the EEO Manager.

Concerning appellant's claim that he was unaware of the 45-day time limit,

the record shows that appellant participated in EEO training on August

4, 1993, and December 16, 1996. The Commission has held that where

there is an issue of timeliness, the 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 25, 1992). The agency has met its burden concerning appellant's

claim that he was unaware of the time limits provided by EEOC Regulations.

We find that appellant had constructive knowledge of the 45-day time

limit. Pride v. United States Postal Service, EEOC Request No. 05930134

(August 19, 1993).

The record shows that as early as August 26, 1996, appellant wrote a

letter to the Chief of Human Resources informing him that "there was

possible bias in selection process based on favoritism and preselection".

The Commission has specifically held that internal efforts or appeals of

an agency's adverse action and/or the filing of a grievance do not toll

the running of the time limit to contact an EEO counselor. See Hosford

v. Department of Veterans Affairs, EEOC Request No. 05890038 (June

9, 1989). After writing the letter in question to the Chief of Human

Resources and accusing the agency of bias, appellant is unable to claim

that he was unaware of the alleged discriminatory event. The Commission

applies a "reasonable suspicion" standard to the triggering date for

determining the timeliness of the contact with an EEO counselor. Cochran

v. United States Postal Service, EEOC Request No. 05920399 (June 18,

1992). Under this standard, the time period for contacting an EEO

counselor is triggered when the complainant should reasonably suspect

discrimination, but before all the facts that would support a charge

of discrimination may have become apparent. Id.; Paredes v. Nagle,

27 FEP Cases 1345 (D.D.C. 1982). Based on the foregoing, we conclude

that appellant should have suspected discrimination as early as August

26, 1996.

Appellant claims, however, that he tried to seek EEO counseling but that

he was referred from one counselor to the next. Moreover, appellant

also claims that he sent the August 26, 1996 letter to Human Resources

pursuant to the advice provided by the EEO Manager. Because the agency

has not addressed appellant's contention that he was advised by the EEO

Manager to write a letter to the Human Resources Chief, rather than seek

EEO counseling, and it has not addressed the issue of whether appellant

was in fact denied EEO counseling by several named counselors, we find

that the agency must conduct a supplemental investigation of appellant's

arguments.

Accordingly, the agency's decision dismissing the complaint on the basis

of untimely EEO counselor contact is VACATED. The complaint is REMANDED

for a supplemental investigation as ordered below.

ORDER

The agency is ORDERED to conduct a supplemental investigation to inquire

if appellant was in fact advised by the EEO manager to write to the Human

Resources Chief, rather than seek EEO counseling, and if he was in fact

denied EEO counseling by the agency EEO counselors. The agency shall

support its finding with affidavits by appellant and appropriate agency

officials, including the EEO Manager and EEO Counselors. Within sixty

(60) days of the date of this decision becoming final, the agency shall

either issue a FAD dismissing the complaint or accept the complaint

for processing. A copy of the final decision or notice of processing

must be submitted 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. �l6l4.604(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:

January 28, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations