Donald Barber, Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionMar 24, 2000
01a00189 (E.E.O.C. Mar. 24, 2000)

01a00189

03-24-2000

Donald Barber, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.


Donald Barber, )

Complainant, )

)

v. ) Appeal No. 01A00190

) Agency No. 99-2356M

Lawrence H. Summers, )

Secretary, )

Department of the Treasury, )

Agency. )

____________________________________)

DECISION

On October 4, 1999, complainant filed a timely appeal with this Commission

from a final agency decision (FAD) issued on September 1, 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.; the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. � 621 et seq; and Section 501 of the Rehabilitation

Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1> In his complaint,

complainant alleged that he was subjected to discrimination on the bases

of race (Black), color (Black), sex (Male), age (DOB: September 5, 1952),

and physical disability (Heart) when on October 10, 1997, complainant

was forced to sign a letter of resignation from the U.S. Customs as a

Customs Inspector.

The agency dismissed his complaint pursuant to EEOC Regulation

64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

referred to as 29 C.F.R. � 1614.107(a)(2)). Under this regulation,

the agency shall dismiss a complaint or a portion of a complaint

that fails to comply with the applicable time limits contained in 64

Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter referred

to as 29 C.F.R. � 1614.105), 64 Fed. Reg. 37,644, 37,656 (1999)(to be

codified and hereinafter referred to as 29 C.F.R. � 1614.106), and �

1614.204(c), unless the agency extends the time limits in accordance

with � 1614.604(c).

EEOC Regulation 29 C.F.R. � 1614.105(a)(1) provides that an aggrieved

person must initiate contact with an EEO 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) allows the agency or the

Commission to extend the time limit if the complainant can establish that

complainant was not aware of the time limit, that complainant did not

know and reasonably should not have known that the discriminatory matter

or personnel action occurred, that despite due diligence complainant

was prevented by circumstances beyond his control from contacting the

EEO Counselor within the time limit, or for other reasons considered

sufficient by the agency or Commission.

The Commission has adopted a �reasonable suspicion� standard, as opposed

to a �supportive facts� standard, to determine when the limitation period

is triggered. See Ball v. United States Postal Service, EEOC Request

No. 05880247 (July 6, 1988)(interpreting 29 C.F.R. � 1613.214(a)(1)(i)

- the predecessor of 29 C.F.R. � 1614.105(a)(1)).

The EEO counselor's report indicates that complainant contacted an EEO

counselor on June 10, 1999 regarding his claim of discrimination which

occurred on October 10, 1996. On appeal, complainant alleges, through

his representative, that he was not made aware of the timelimits.

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). 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 Gens v. Department

of Defense, EEOC Request No. 05910837 (January 31, 1992). Further,

the Commission imputes constructive knowledge of EEO procedures to an

employee when an agency complies with notice posting requirements. The

agency was required to produce evidence that it took sufficient actions

to justify the inference of constructive knowledge. The Commission has

held that blanket conclusions, without supporting affidavits or other

evidence, were insufficient to demonstrate the agency had complied with

posting requirements and it declined to impute knowledge of the EEO

complaint process to the employee. Thompson v. Department of the Army,

EEOC Request No. 05910474 (September 12, 1991).

Upon review of the record, we find that the agency failed to include

postings or notices regarding the EEO process and the time limitations.

In addition, the agency failed to include any other evidence, such as

affidavits, which would prove that there were EEO postings in prominent

locations at the time of alleged incidents. The Commission finds that

the agency has not carried its burden. Accordingly, the Commission

REVERSES the agency's decision to dismiss complainant's complaint and

REMANDS it to the agency for further processing in accordance with this

decision and the Order below.

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 (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 24, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1On 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.