01a06000ruth
02-08-2001
Deborah Ruth, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Deborah Ruth v. Department of the Treasury
01A06000
February 8, 2001
.
Deborah Ruth,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A06000
Agency No. TD 00-3253
DECISION
Complainant filed a timely appeal with this Commission from an agency
final decision (FAD) dated September 13, 2000, dismissing her complaint
of unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.<1> In her complaint, complainant alleged discrimination based
on disability when she was not selected for promotion to Tax Examining
Assistant, GS-0592-05/06.
The agency dismissed the complaint pursuant to 29 C.F.R. �
1614.105(a)(2),<2> noting that complainant did not initiate contact with
an EEO counselor until July 10, 2000, more than 45 days after the date
of the alleged act of discrimination, i.e., May 10, 2000, the date the
selection for promotion was made. On appeal, complainant alleges that
she did not know until July 10, 2000, that she placed second on the
best-qualified list, and that she thought any time limits would begin
when she found out that she had a legitimate reason to file a complaint.
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).
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 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. 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 Howard v. Department of the Navy, EEOC Request No. 05970852
(February 11, 1999). Accordingly, the limitations period begins to
run when a person with reasonably prudent regard for her/his rights
knew or should have known that she/he was being discriminated against.
Reeb v. Economic Opportunity of Atlanta, Inc., 516 F.2d 924, 931 (5th
Cir. 1975). 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. Waiting until one
has supporting facts or proof of discrimination before initiating a
complaint can result in untimely counselor contact. Bracken v. USPS,
EEOC Request No. 05900065 (March 29, 1990).
EEOC Regulations also provide that the agency or the Commission shall
extend the time limits when the individual shows that she/he was
not notified of the time limits and was not otherwise aware of them,
that she/he did not know and reasonably should not have known that the
discriminatory matter or personnel action occurred, that despite due
diligence she/he was prevented by circumstances beyond her/his control
from contacting the Counselor within the time limits, or for other
reasons considered sufficient by the agency or the Commission.
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO contact. The record discloses that the selection for promotion was
made on May 10, 2000, and that complainant knew that she had not been
selected on that date. The fact that complainant waited until July 10,
2000, to contact an EEO counselor, after finding out, on the same day,
that she was placed second on the best-qualified list, is consistent
with the Commission's �reasonable suspicion� standard. Essentially,
complainant argues that it was not until she found out she was placed
second on the best-qualified list, that she had a �reasonable suspicion�
of discrimination. Complainant's position is well taken. Being second on
the best-qualified list, while it could be relevant in supporting a case
of discrimination, does not implicate, without more, the �supportive
facts� standard. The agency, in its FAD, erred in relying solely on
the date of the selection for promotion for purposes of timeliness.
The agency did not bear its burden of obtaining sufficient information
to support a reasoned determination as to timeliness.<3>
CONCLUSION
Accordingly, the agency's final decision dismissing complainant's
complaint is REVERSED, and the complaint is REMANDED for further
processing consistent with the Commission's decision and applicable
regulations.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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 (K0900)
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 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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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
(R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 8, 2001
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
3 We also note that a promotion is a personnel action. The agency did
not indicate what the effective date of the promotion was.