01974770
01-21-1999
Claynarn Robinson, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Claynarn Robinson v. Department of Defense
01974770
January 21, 1999
Claynarn Robinson, )
Appellant, )
) Appeal No. 01974770
v. ) Agency No. FO9704H0400
)
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Commissary Agency), )
Agency. )
)
DECISION
On May 30, 1997, appellant filed a timely appeal with this Commission
from a May 9, 1997 final agency decision, dismissing her complaint for
failure to contact an EEO Counselor in a timely manner.
The agency framed the allegation of the April 11, 1997 complaint
as whether appellant was discriminated against on the bases of race
(Negro) and color (Black) when on October 27, 1996, she was not given
full-time work in the Chill and Freeze Section, although on November
27, 1996, full-time work was provided to a lesser qualified, part-time
employee who was allowed to work extended hours and overtime and given
compensatory time. In dismissing the complaint, the agency stated
that appellant failed to contact an EEO counselor within 45 days of the
alleged discrimination and failed to provide justification sufficient
to extend the time period.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that an aggrieved
person initiate contact with a Counselor within 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) permits the time period to be
extended under certain circumstances and 29 C.F.R. �1614.604(c) provides
that the time limits in Part 1614 are subject to waiver, estoppel and
equitable tolling. The Commission has adopted a "reasonable suspicion"
standard (as opposed to a "supportive facts" standard) to determine
when the 45-day limitation period is triggered. See Ball v. U.S. Postal
Service, EEOC Request No. 05880247 (July 6, 1988). Thus, the limitation
period is not triggered until a complainant should reasonably suspect
discrimination, but before all the facts that would support a charge of
discrimination have become apparent.
Appellant does not dispute that she was aware of the time limit for
timely contact. The Counselor's Report indicates that appellant
did not contact an EEO Counselor until March 14, 1997, regarding the
alleged discrimination. On appeal, however, appellant contends that
from December 11 through December 13, 1996, she tried to contact an
EEO Counselor. Appellant asserts that Person A, who was talking to an
EEO Officer relayed the message that appellant wanted to talk to him;
however, Person A told that the EEO Counselor purportedly refused to talk
to appellant, stating that appellant would have to call him herself.
Appellant further alleges that although she tried to reach the EEO
Counselor several times thereafter, she was unable to do so and that
Person A witnessed her attempts. Appellant also states on appeal that
she tried to contact other EEO Counselors but was unsuccessful.
Upon review, the Commission is unable to determine the propriety of the
agency's decision since appellant asserts on appeal that she attempted to
make contact in December 1996, but that the EEO Counselor refused to speak
to her and that she was unable to establish contact. It is well-settled
that 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." Williams v. Department of Defense,
EEOC Request No. 05920506 (August 25, 1992). Accordingly, on remand the
agency shall conduct a supplemental investigation to determine whether
appellant attempted to initiate EEO Counselor contact in December 1996.
Consistent with our discussion herein, the final agency decision is
VACATED and the complaint is REMANDED to the agency for further processing
in accordance with the Order below and applicable regulations.
ORDER
The agency is ORDERED to take the following actions:
1) Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall notify appellant of the opportunity to meet with
an EEO Official to discuss her alleged EEO contact attempts in December
1996. Specifically, appellant shall identify the EEO Counselors that she
attempted to meet with, the identity of the EEO Officer with whom Employee
A met, and all other relevant information regarding her EEO contacts.
2) The agency shall conduct a supplement investigation based upon the
information provided by appellant. The agency shall obtain statements
from all the individuals identified by appellant, as well as all records
kept in the EEO Office indicating contacts made during the month of
December 1996.
3) Thereafter, the agency shall, within forty-five (45) calendar days
of the date this decision becomes final, issue a notice of processing
or new final decision on appellant's complaint.
A copy of the agency's new final decision or notice of processing 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:
Jan 21, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations