01985463
01-12-2000
Donald Stephens v. Department of the Army
01985463
January 12, 2000
Donald Stephens, )
Complainant, )
)
v. ) Appeal No. 01985463
Louis Caldera, ) Agency No. 9509F0350
Secretary, )
Department of the Army, )
Agency. )
____________________________________)
DECISION
On July 3, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) dated June 2, 1998, pertaining to
his complaint of unlawful employment discrimination in violation of
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. <1> Because the agency failed to submit a
copy of the certified receipt, or any evidence, indicating the date
complainant received the final agency decision, the Commission will
exercise its discretion and accept complainant's appeal as timely.
See 64 Fed. Reg. 37, 644, 37, 656 (1999)(to be codified as 29 C.F.R. �
1614.402(a)). In his complaint, complainant alleged that he was subjected
to discrimination on the basis of age (51) when:
Complainant was not selected for the position of Air Traffic Controller.
The agency originally issued a final decision in this case on September 8,
1995, in which it dismissed complainant's complaint on the grounds that
he failed to timely contact an EEO Counselor. Complainant appealed the
final agency decision. On September 18, 1996, the Commission remanded
the complaint to the agency and ordered a supplemental investigation
to determine when complainant should have reasonably suspected that the
non-selection was discriminatory. EEOC Appeal No. 01960489 (September
18, 1996), request for reconsideration denied, EEOC Request No. 05970135
(April 2, 1998). Thereafter, a supplemental investigation was conducted
and the agency issued a final decision on June 2, 1998, in which it
dismissed complainant's complaint on the grounds that he failed to contact
an EEO Counselor in a timely manner. Specifically, the agency relied
on a May 10, 1995 consultation with the EEO office and a June 7, 1995
telephone interview with the EEO Counselor in which complainant indicated
that in September 1994, he received official notice of his non-selection.
The agency alleges that the complainant had an awareness of the age of
the selectees at the time he received the notice of non-selection and
thereby had a reasonable suspicion of age discrimination at this time.
In addition, the agency argued that complainant's Freedom of Information
Act (FOIA) request, as confirmed by complainant, was for the purpose of
determining the qualifications of the selectees and not age. The agency
concludes that any delay caused by complainant's FOIA request is not
germane nor connected to his belief of age discrimination and therefore
does not mitigate his untimely counselor contact.
On appeal, complainant states that he did not know the age of the
selectees at the time he was notified of his non-selection. In addition,
complainant reiterates his contention that he did not suspect that age
played a factor in the job selection process until he received the FOIA
information about the selectees in May 1995. Therefore, complainant
argues that his May 10, 1995 contact with the EEO Counselor was timely.
We find that the agency erred in dismissing complainant's complaint on
the grounds of untimeliness. EEOC regulations provide that an aggrieved
person must initiate contact with a counselor within 45 days of the
alleged discriminatory event. 29 C.F.R. � 1614.105(a)(1). This time
limit shall be extended if the complainant shows that he did not know
about these time limits, he did not know or reasonably should not have
known that the discriminatory matter occurred, or for other sufficient
reasons. 29 C.F.R. � 1614.105(a)(2). The Commission has adopted a
"reasonable suspicion" standard (as opposed to a "supportive facts"
standard) for determining whether contact with an EEO Counselor is timely.
Ball v. U.S. Postal Service, EEOC Request No. 05880247 (July 6, 1988).
Under this standard, the regulatory limitations period "is not triggered
until a complainant reasonably suspects discrimination, but before all the
facts that would support a charge of discrimination have become apparent."
Bracken v. U.S. Postal Service, EEOC Request No. 05900065 (March 29,
1990). As soon as the complainant reasonably suspects discrimination,
the 45-day time period begins to run. Peets v. US Postal Service,
EEOC Request No. 05950725 (March 28, 1996).
In the present case, the agency relies on the fact that complainant was
informed of his non-selection on September 28, 1994, to commence the
running of the forty-five day time period for contacting a counselor.
Complainant does not dispute that this is the date he learned of his
non-selection, however, he argues that he did not reasonably suspect
age discrimination at this time. Instead, complainant states that he
did not reasonably suspect age discrimination played a factor in his
non-selection until he obtained a response in his FOIA request. 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).
The record contains no evidence that complainant reasonably should have
suspected that the non-selection was discriminatory prior to receiving the
response to his FOIA request. Since the agency failed to meet its burden
of establishing that September 28, 1994, was the date complainant should
have had a reasonable suspicion of discrimination, we find that April 28,
1995, the date complainant received a response to his FOIA request, is
the date that the forty-five day time period started to run. Therefore,
as complainant contacted an EEO Counselor on May 10, 1995, within the
forty-five day time period, we find that his contact was timely.
Accordingly, the agency's decision was improper and is REVERSED.
The complaint is REMANDED for further processing in accordance with 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 (M1199)
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). 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:
January 12, 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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
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.