01a00736
02-24-2000
Charlie McMillar, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Charlie McMillar, )
Complainant, )
)
v. ) Appeal No. 01A00736
) Agency No. RX1M99279
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
____________________________________)
DECISION
On October 26, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) received by him on October
9, 1999, pertaining to 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.<1> The Commission accepts the current appeal
in accordance with EEOC Order No. 960.001.
ISSUE PRESENTED
The issue presented herein is whether the agency properly dismissed the
present case for untimely EEO Counselor contact.
BACKGROUND
The record reveals that for the relevant time period, complainant was
employed by the Department of the Air Force as a sheet metal mechanic,
WG-3806-10. Complainant states that on October 23, 1998, he learned that
a female employee was selected for the inventory management specialist
position for which he applied. Furthermore, complainant states that on
February 1, 1999, he again learned that he was not selected for another
two inventory management specialist positions he applied for, but instead,
female employees were again selected for the positions.
Believing that he was the victim of discrimination, on June 10,
1999, complainant initiated contact with an EEO Counselor. During the
counseling period, complainant stated that he was not selected for three
promotions for which he applied.
Counseling failed, and on September 15, 1999, complainant filed a formal
complaint claiming he was the victim of unlawful employment discrimination
on the basis of his gender (male). The formal complaint was comprised
of the matters for which complainant underwent EEO counseling, discussed
above.
On October 5, 1999, the agency issued a final decision dismissing
the instant complaint for failure to initiate timely contact with an
EEO Counselor. Specifically, the agency found that the last alleged
discriminatory event occurred on February 1, 1999, and complainant's
initial EEO Counselor contact on June 10, 1999, was more than forty-five
days after the purported discriminatory act occurred.
On appeal, complainant argues that he did not initiate contact within the
prescribed time frame because he was unaware of the limitations period.
The agency, on appeal, and in their decision, the agency fails to address
complainant's knowledge of the EEO process.
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 Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of
the time limits and was not otherwise aware of them, that she did not
know and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
However, where, as here, there is an issue of timeliness, "[a]n
agency always bears the burden of obtaining sufficient information
to support a reasoned determination as to timeliness." Guy,
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 addition, in Ericson v. Department of the Army,
EEOC Request No. 05920623 (January 14, 1993), the Commission stated
that �the agency has the burden of providing evidence and/or proof to
support its final decisions.� See also Gens v. Department of Defense,
EEOC Request No. 05910837 (January 31, 1992).
In the present case, the record clearly indicates that complainant
was untimely in initiating contact with an EEO Counselor for all three
non-selections. However, the record is also void of any evidence that
complainant was aware of the limitations period. Appropriately, to
support their decision and to rebut complainant's assertion on appeal,
the agency should have included photo copies of EEO notices within the
workplace and an affidavit swearing that the notices were posted in a
conspicuous manner for all employees to see. Therefore, without evidence
establishing that complainant was on notice of the limitations period
for contacting an EEO Counselor, the Commission finds that the agency
did not supply evidence to support their final decision. Accordingly,
the decision of the agency dismissing the present case for untimely
counselor contact was improper.
CONCLUSION
For the reasons set forth herein, the Commission hereby REVERSES the
decision of the agency dismissing the present complaint for untimely
Counselor contact. Accordingly, the complaint is REMANDED to the agency
for further processing in accordance with this decision and applicable
regulations.
ORDER (E1199)
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 an
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 (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R1199)
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:
February 24, 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 Assistant1On 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.