Don Glenn, Complainant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionMar 29, 2000
01992145 (E.E.O.C. Mar. 29, 2000)

01992145

03-29-2000

Don Glenn, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.


Don Glenn, )

Complainant, )

)

v. ) Appeal No. 01992145

) Agency No. 980714

Daniel R. Glickman, )

Secretary, )

Department of Agriculture, )

Agency. )

______________________________)

DECISION

The Commission finds that the agency's December 18, 1998 decision

dismissing the complaint on the grounds of untimely EEO Counselor contact,

is not proper pursuant to the provisions of 64 Fed. Reg. 37,644,

37,656 (1999) (to be codified and hereinafter referred to as 29

C.F.R. �1614.107(a)(2)).<1>

The record shows that Complainant sought EEO counseling on March 4, 1998,

alleging that he had been discriminated against on the bases of sex (male)

and race (White) when on December 19, 1997, he was not selected for an

Apprentice Firefighter permanent position, GS-462-4, advertised under

vacancy announcement number RAP5-009-97-R05F05A. Complainant subsequently

filed a formal complaint of discrimination regarding this issue.

The agency issued a final decision dismissing the complaint on the basis

of untimely EEO counselor contact after finding that Complainant had

failed to seek EEO counseling within the 45-day time limit provided by

EEOC Regulations. The agency noted that Complainant sought EEO counseling

�74 days from the date of the notification letter�. The agency further

noted that at the station where Complainant works �four bulletin boards

are used to post EEO and civil rights information�.

On appeal, Complainant makes four arguments. First, he did not receive

the December 19, 1997 notification of non-selection until January 4, 1998,

when he returned from his vacation. Second, he was aware of the alleged

discrimination against him the instant �[he] found out who received the

positions�. Third, at that time he then contacted his supervisor to

find out what action he should take and after being unable to contact

his supervisor, he then spoke to his union representative on February

4, 1998, who advised him to seek EEO counseling. Finally, Complainant

claims that he was unaware of the 45-day time limit because he does

�not work out of the main office and usually [is] only there for a very

short time 1-2 days a week to do [his] time on the computer ... [his]

duty station is approximately 1 mile away from the Ranger station and

there is no EEO information posted there�.

The record shows that Complainant claims that he did not receive the

notification of non-selection until he returned from his vacation on

January 4, 1998. He further contends that when he found out who the

selectees were he �instantly felt� that he had been discriminated against.

Complainant further claims that he then sought his supervisor's guidance

and the advice of his union representative. We have previously held

that internal appeals or informal efforts to challenge an agency's

adverse action do not toll the running of the time limit to contact

an EEO counselor. See Hosford v. Department of Veterans Affairs, EEOC

Request No. 05890038 (June 9, 1989).

Complainant acknowledges that on February 4, 1998, his union

representative advised him to seek EEO counseling. The record shows that

after receiving such advice Complainant still waited four (4) weeks to

seek EEO counseling. Nevertheless, Complainant claims that because he

only works at the main office �1-2 days a week� and since there are no EEO

posters at his work location, he was unaware of the 45-day time limit.

The Commission applies a "reasonable suspicion" standard to the triggering

date for determining the timeliness of the contact with an EEO counselor .

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. Id.; Paredes v. Nagle,

27 FEP Cases 1345 (D.D.C. 1982).

Nevertheless, the Commission has also consistently held that where

there is an issue of timeliness, the 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). Here, the record shows that the agency

has not provided any evidence to show that Complainant was, or should

have been, aware of the 45-day time limit, except for a statement in its

final decision that four bulletin boards are used to display EEO and civil

rights information. The agency has failed to provide independent evidence

of such posting, i.e., affidavit by an appropriate agency official.

Moreover, assuming arguendo that complainant was aware of the 45-day

limitation period, we are unable to ascertain whether complainant

contacted an EEO Counselor within 45 days of the date he first developed

a reasonable suspicion of unlawful employment discrimination. We note

specifically that on appeal, complainant argues that he received a notice

of non-selection upon his return from a vacation, on January 4, 1998;

and that when he learned who received the positions for the wildland

firefighter program, he �instant felt [that he] had been discriminated

against.� However, the record is unclear as to the date complainant

�instantly felt� discrimination, and whether complainant's initial EEO

Counselor contact in March 1998 was timely.

In summary, because we are unable to ascertain whether complainant was

actually or constructively on notice of the 45-day limitation period;

and because we are also unable to ascertain when complainant developed a

reasonable suspicion of discrimination, the agency's decision to dismiss

the complaint is VACATED. Complainant's complaint is REMANDED to the

agency for further processing in accordance with the ORDER below.

Accordingly, the complaint was improperly dismissed on the basis of

untimely EEO counselor contact and is hereby VACATED. The complaint

is REMANDED for a supplemental investigation in accordance with this

decision and applicable regulations.

ORDER

The agency is ORDERED to take the following action:

1. The agency is ORDERED to conduct a supplement investigation to

ascertain whether complainant had been informed of the necessity for

initiating contact with an EEO Counselor and the time limits for doing

so, and when and how complainant had been so informed.

2. The agency is further ORDERED to provide complainant with the

opportunity to submit information regarding the exact date that he

became aware that he was the victim of discrimination due to his

non-selection for the position at issue in the instant complaint;

the information he received that caused him to believe that he was the

victim of discrimination; and how the information triggered a suspicion

of unlawful employment discrimination.

Within thirty (30) days of the date that this decision becomes final,

the agency shall notify complainant that he has fifteen calendar days

from the date of his receipt of the agency's notification to provide the

agency with information listed in provision 2 above. The agency shall

have thirty calendar days from the date of its receipt of complainant's

response to issue a final agency decision or to notify complainant that

the agency is processing his complaint.

A copy of the agency's notice to complainant requesting the supplemental

information outlined in this ORDER, as well as a copy of the new final

agency decision and/or notice of processing 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).

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:

March 29, 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 after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

________ _________________________________

1 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 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.