01982188_r
03-19-1999
Alfred E. Stephens, Appellant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Alfred E. Stephens, )
Appellant, )
)
v. ) Appeal No. 01982188
) Agency No. PSC-001-98
Donna E. Shalala, )
Secretary, )
Department of Health and Human )
Services, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning 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, as amended, 29 U.S.C. �621 et seq. The final agency decision was
issued on January 13, 1998. The appeal was postmarked January 20, 1998.
Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed two of three
allegations from appellant's complaint on the grounds that appellant
failed to contact an EEO Counselor in a timely manner.
BACKGROUND
The record reveals that appellant, an attorney in private practice,
applied for three General Attorney positions with the agency,
GS-905-13/14, GS-905-11/12, and GS-905-12/13, pursuant to three separate
vacancy announcements. Appellant stated that he was notified of his
nonselection on February 12, 1997. By letter dated February 12, 1997,
appellant submitted a Freedom of Information Act (FOIA) request for
information from the agency's Program Support Center regarding the
selectees and the overall selection process. By letter dated April 7,
1997, appellant submitted to the Commission a request to initiate a
discrimination complaint. Appellant subsequently initiated contact
with an EEO Counselor on May 27, 1997. In a formal EEO complaint dated
December 1, 1997, appellant alleged that he had been discriminated
against on the bases of his sex (male), race (white), and age (43)
when on February 10, 1997, he was not selected for any of the three
relevant positions.
In its final decision, the agency dismissed appellant's complaint with
respect to two of the three nonselections on the grounds of failure to
contact an EEO Counselor in a timely manner. The agency determined that
appellant's contact of the Commission on April 7, 1997, was nine days
after the expiration of the 45-day limitation period. According to
the agency, appellant, as an attorney who formerly worked as an EEO
Specialist, should have been aware of the time limit for contacting an EEO
Counselor. The agency accepted the issue of appellant's nonselection for
a General Attorney, GS-905-12/13 position, as advertised under vacancy
announcement number OIG-96-060.
On appeal, appellant contends that he received notice of his nonselection
on February 12, 1997, rather than February 10, 1997. Appellant claims
that the 45-day limitation period should not have commenced until the
agency received his FOIA request on February 18, 1997. Appellant argues
that based on that date, his contact would have been three days late,
including a two day weekend. Appellant contends that he diligently sought
to obtain FOIA material, and after receiving no response, he contacted
the Commission. According to appellant, the agency negated his due
diligence and prevented him from timely contacting an EEO Counselor.
Further, appellant claims that he did not work as an EEO Specialist,
but rather in the area of housing discrimination. Appellant maintains
that as a non-Federal employee, he should not be charged with knowledge
of the federal EEO limitation period for contacting an EEO Counselor.
In response, the agency asserts that appellant failed to exercise
diligence in obtaining information about the federal complaint process
after he learned that he not been selected for the relevant positions.
The agency maintains that it does not have an obligation to inform
every applicant for employment of the limitation period for contacting
an EEO Counselor.
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 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) provides that the agency or the
Commission shall extend the 45-day time limit when the individual shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not have
known that the discriminatory matter or personnel action occurred, that
despite due diligence he or she was prevented by circumstances beyond his
or her 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 No. 05910474 (September
12, 1991) (citing Kale v. Combined Insurance Co. of America, 861 F.2d 746
(1st Cir. 1988).
The Commission has held that information in an EEO Counselor's report
regarding posting of EEO information was inadequate to support application
of a constructive notice rule. Pride v. United States Postal Service,
EEOC Request No. 05930134 (August 19, 1993). The Commission found in
Pride that the agency had merely made a generalized affirmation that
it posted EEO information. Id. The Commission found that it could not
conclude that appellant's contact of an EEO Counselor was untimely without
specific evidence that the poster contained notice of the time limit. Id.
Appellant alleged that he was discriminated against when on February 12,
1997, he learned that he had not been selected for any of three General
Attorney positions. Appellant initiated contact with the Commission on
April 7, 1997, nine days after the expiration of the 45-day limitation
period for contacting an EEO Counselor. However, we note that appellant
claimed that as a non-federal employee, he should not be charged with
knowledge of the 45-day limitation period for contacting an EEO Counselor.
We note that the Commission has recognized that an appellant who is not
a federal employee may not be aware of the applicable EEO regulations,
including the requirement to contact an EEO Counselor within 45 days.
See Lule v. Department of Defense, EEOC Request No. 05900832 (September
17, 1990). The Commission has also found that even if EEO posters
are posted at the facility where appellant applied for a position,
that evidence alone is insufficient to impute knowledge of the EEO
process to the applicant. Jones v. United States Postal Service,
EEOC Request No. 05910181 (February 15, 1991). The Commission has held
that EEO Counselor contact by a non-federal employee is timely although
it occurs outside the applicable time period where the complainant is
not familiar with EEO procedures and was not informed of procedures by
the agency. Saxton v. Department of the Army, EEOC Request No. 05901229
(January 21, 1991). While the agency contends that it is not obligated
to inform every applicant of the time period for initiating EEO contact,
appellant's unrebutted contention that he was not informed or otherwise
aware of the applicable time limit is sufficient justification to warrant
an extension of the time limit in this case. Accordingly, the agency's
decision to dismiss two allegations from appellant's complaint on the
grounds of untimely contact is REVERSED. These allegations are hereby
REMANDED for further processing pursuant to the ORDER below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (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:
March 19, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations