01a00982
05-16-2000
Antonio Hernandez, )
Complainant, )
)
v. ) Appeal No. 01A00982
) Agency No. 4-H-320-0195�99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Based on a review of the record, we find that the agency improperly
dismissed complainant's complaint for untimely EEO Counselor contact.<1>
See 64 Fed. Reg. 37,656 (1999) (to be codified and hereinafter referred to
as 29 C.F.R. � 1614.107(a)(2)). Complainant alleged that he was subjected
to discrimination for prohibited reasons<2> when he was denied a transfer
to a Florida facility from Puerto Rico on March 12, 1999.
The final agency decision (FAD) determined that complainant's EEO
contact of July 19, 1999, was well beyond the applicable time period of
45 days. See 64 Fed. Reg. 37,656 (1999) (hereinafter referred to and to
be codified as 29 C.F.R. � 1614.105(a)(1)). Time limitations shall be
extended when a complainant makes an adequate showing of justification
for an extension. See 64 Fed. Reg. 37,656(1999)(hereinafter referred
to and to be codified as 29 C.F.R. � 1614.105(a)(2)). In addition, time
limitations are subject to waiver, estoppel, and equitable tolling. See
64 Fed. Reg. 37,661(1999)(hereinafter referred to and to be codified as
29 C.F.R. � 1614.604(c)).
The Commission has applied a "reasonable suspicion" standard to the
triggering date for determining the timeliness of the contact with an
EEO Counselor. See 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.
However, in the present matter, the Commission finds that the agency
has not met its �burden of obtaining sufficient information to support a
reasoned determination as to timeliness." See Guy, Jr. v. Department of
Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams
v. Department of Defense, EEOC Request No. 05920506 (August 25,
1992)). In this regard, we find the EEO Counselor failed to inquire
into the reasons, if any, for complainant's purported untimely contact.
See McDonald v. Department of Transportation, EEOC Request No. 05960642
(August 11, 1998).
In addition, the Commission finds that complainant, on appeal, has
provided a detailed explanation concerning his efforts to initiate
EEO counseling in a timely manner. He contends, for example, that he
contacted a named EEO Counselor (�NEC�) in Puerto Rico within 45 days of
the agency's denial of his transfer request. He argues, without rebuttal
by the agency, that NEC would not accept his complaint, was uncooperative,
and provided him with inaccurate information that precluded complainant
from initiating EEO contact with the agency in Florida. Complainant
avers that it was only in July 1999, after contacting his union, that
complaint finally received the agency's correct phone number in Florida.
Accordingly, based on the facts of this matter, the Commission finds
complainant's EEO contact to be timely.
The FAD is hereby REVERSED, and complainant's complaint is hereby
REMANDED for further processing consistent with this decision and
applicable regulations. The parties are advised that this decision is
not a decision on the merits of complainant's complaint. The agency is
hereby directed to comply with the Commission's ORDER set forth bellow.
ORDER (E0400)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). 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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION
(R0400)
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:
May 16, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2One of the bases of alleged discrimination was race (Hispanic). The
Commission recognizes "Hispanic" as indicating national origin instead
of race. See Quesada v. U.S. Postal Service, EEOC Appeal No. 01940399
(August 19, 1994), at footnote 1 ("Mexican"), request to reconsider
denied, Quesada v. U. S. Postal Service, EEOC Request No. 05950003
(June 29, 1995).