01992262_r
11-05-1999
Christopher T. Semien, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Christopher T. Semien, )
Appellant, )
)
v. ) Appeal No. 01992262
) Agency No. 5-99-5015
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
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. The final agency decision was issued on December
22, 1998. The appeal was postmarked January 25, 1999. 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.<1>
ISSUES PRESENTED
The issues presented are:
whether the agency properly dismissed the first allegation of appellant's
complaint on the grounds that appellant elected to pursue the matter
raised therein under the agency's negotiated grievance procedure; and
whether the agency properly dismissed allegations 2 and 4 of appellant's
complaint on the grounds that appellant failed to initiate contact with
an EEO Counselor in a timely manner.
BACKGROUND
Appellant, an Electronics Technician, GS-12, initiated contact with an EEO
Counselor on September 18, 1998. On November 5, 1998, appellant filed a
formal EEO complaint wherein he alleged that he had been discriminated
against on the bases of his race (African-American) and color (black)
when:
1. On September 3, 1998, appellant received a 10-day suspension for
disreputable conduct.
2. On July 8, 1998, the agency denied appellant's request for a temporary
change in duty station and a transfer to another group.
3. On August 27, 1998, management suggested that he write a letter
acknowledging guilt for the issues leading to his 10-day suspension.
4. In February 1996, appellant made a derogatory comment to a female
employee and was suspended for one day.
In its final decision, the agency dismissed the first allegation of
appellant's complaint on the grounds that appellant elected to proceed
pursuant to the agency's negotiated grievance procedure. The agency
determined that appellant raised his 10-day suspension when he filed
a grievance on October 2, 1998, pursuant to the negotiated grievance
procedure. Allegations 2 and 4 were dismissed on the grounds that
appellant failed to contact an EEO Counselor in a timely manner. The
agency determined that appellant's contact of an EEO Counselor was more
than 45 days after the incidents that occurred in February 1996 and on
July 8, 1998, respectively. Allegation 3 was accepted for investigation.
In a letter to the agency dated January 5, 1999, with regard to
allegation 1, appellant stated that he was instructed by his union and
the EEO Counselor to file a grievance about union violations other than
discrimination, and that discrimination complaints would be addressed in
the EEO process. Appellant states on appeal that he would not have filed
his grievances had he known that his EEO complaint would be dismissed for
the aforementioned grounds. With respect to the dismissal of allegations
2 and 4, appellant claims that he was unaware of any time frames for
contacting an EEO Counselor until after his initial contact with an EEO
Counselor in September 1998. Appellant further claims that at the time
that he was denied a transfer, he did not know what the EEO process was
and he only learned about the EEO process because a coworker mentioned
it to him. Finally, appellant states with regard to allegation 4 that
on or about November 1, 1998, he learned through a conversation with a
coworker that a white employee was not disciplined after being involved
in an incident very similar to that for which appellant received a one
day suspension.
By letter dated January 15, 1999, the agency informed appellant that it
did not accept allegation 1 because appellant filed several grievances
pertaining to the 10-day suspension. As for allegations 2 and 4, the
agency stated that it had been informed by appellant's work facility
that there is a posting of the current EEO process on the employees'
bulletin board.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.301(a) provides in relevant part that
when a person is employed by an agency subject to 5 U.S.C. �7121(d) and
is covered by a collective bargaining agreement that permits allegations
of discrimination to be raised in a negotiated grievance procedure, a
person wishing to file a complaint or a grievance on a matter of alleged
employment discrimination must elect to raise the matter under either
part 1614 or the negotiated grievance procedure, but not both.
The record reveals that appellant filed a grievance concerning his
10-day suspension on October 2, 1998. The record, however, does not
contain a copy of the collective bargaining agreement. Without a copy of
the collective bargaining agreement, we are unable to determine whether
allegations of discrimination are permitted under the negotiated grievance
procedure. In light of the fact that we are unable to determine whether
the negotiated grievance procedure permits allegations of discrimination,
we find that the agency failed to substantiate the bases for its
final decision. See Marshall v. Department of the Navy, EEOC Request
No. 05910685 (September 6, 1991). Accordingly, the agency's decision
to dismiss the first allegation of appellant's complaint is REVERSED.
Allegation 1 is hereby remanded for further processing pursuant to the
ORDER below.
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 on July 8, 1998,
when his request for a temporary change in duty station and a transfer
to another group was denied, and in February 1996, when he was suspended
for one day because he made a derogatory comment to a female employee.
Appellant did not initiate contact with an EEO Counselor until September
18, 1998, after the expiration of the 45-day limitation period. However,
we note that appellant claims that he was unaware of the 45-day limitation
period for contacting an EEO Counselor until after he initiated contact
with the EEO Counselor in September 1998. We note that the agency
stated in its letter to appellant dated January 15, 1999, that it had
been informed by appellant's work facility that there is a posting of the
current EEO process on the employees' bulletin board. We find that this
assertion by the agency that it posted EEO information is insufficient.
The agency has not submitted a copy of the relevant EEO poster nor has
the agency submitted an affidavit from an official at appellant's work
facility stating that an EEO poster containing the 45-day limitation
period was posted in a conspicuous location at the facility for a
significant amount of time during the time period of February 1996 -
August 1998. Consequently, we find that this matter must be remanded
to the agency for a supplemental investigation as to whether appellant
had actual or constructive notice of the 45-day limitation period for
contacting an EEO Counselor. Accordingly, the agency's decision to
dismiss allegations 2 and 4 of appellant's complaint on the grounds of
untimely EEO contact is VACATED. Allegations 2 and 4 are hereby REMANDED
for further processing pursuant to the ORDER below.
ORDER
The agency is ORDERED to investigate the issue of whether during the
relevant time period, it posted EEO information on display, or in some
other manner provided EEO information to appellant, that specifically
referred to the time limit for contacting an EEO Counselor. The agency
shall gather any other evidence necessary to determine when appellant
learned of the time limit for contacting an EEO Counselor. Within thirty
(30) calendar days of the date this decision becomes final, the agency
shall issue a notice of processing or a determination that allegations
2 and 4 will not be processed after it determines whether appellant
had actual or constructive notice of the time limit for contacting an
EEO Counselor or acted in a timely manner once he obtained actual or
constructive knowledge.
A copy of the notice of processing or determination not to process
regarding allegations 2 and 4 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:
November 5, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1The record does not establish when
appellant received the final agency decision. Absent evidence to
the contrary, we find that the instant appeal was timely filed.