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