01975541
01-24-2000
Emanuel S. Chase, Complainant, I. Michael Heyman, Secretary, Smithsonian Institution, Agency.
Emanuel S. Chase v. Smithsonian Institution
01975541
January 24, 2000
Emanuel S. Chase, )
Complainant, )
) Appeal No. 01975541
) Agency No. 97-31-042897
)
I. Michael Heyman, )
Secretary, )
Smithsonian Institution, )
Agency. )
)
DECISION
INTRODUCTION
Complainant filed an appeal with this Commission from a final agency
decision concerning 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.<1> The final agency decision was dated June
2, 1997, and received by complainant on June 6, 1997. The appeal was
postmarked on July 3, 1997. Accordingly, the appeal is timely (see 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.402(a)), and is accepted in accordance with EEOC
Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed complainant's
complaint on the grounds that complainant failed to timely file a formal
complaint.
BACKGROUND
The record indicates that on February 27, 1997, complainant contacted
an EEO Counselor alleging discrimination based on race (black) when
on January 15, 1997, he was not selected for the position of Physical
Security Specialist (Security Manager), GS-12. He initially met with
the EEO Counselor on March 3, 1997. Informal efforts to resolve the
dispute were unsuccessful, and complainant signed his Notice of Final
Interview With an EEO Counselor on April 10, 1997. Therein, complainant
was informed that if he wished to file a complaint of discrimination,
he must do so within 15 calendar days after receipt of the Notice.
The Notice also specified that if complainant retained an attorney he
must inform the agency Office of Equal Employment and Minority Affairs
in writing. Complainant filed a formal complaint on April 28, 1997,
through his attorney.
In its final agency decision (FAD), the agency dismissed the complaint for
failure to comply with the applicable time limits. The agency stated that
complainant received the Notice of Final Interview With an EEO Counselor
on April 10, 1997, but did not file his complaint until April 28, 1997,
three days after the 15-day time limit expired. Complainant's attorney
had acknowledged filing the complaint beyond the 15-day time period and
had argued upon filing that the late filing should be excused because
the agency had not served the Notice of Final Interview on the attorney
in violation of 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and
hereinafter referred to as 29 C.F.R �1614.605(d)). At the same time
the formal complaint was filed, the agency received written notice
of the identity and address of the attorney complainant had hired to
represent him in his EEO complaint. The Power of Attorney form which
the attorney submitted to the agency had been signed by complainant on
February 26, 1997.
In its FAD, the agency argued that complainant's late filing was not
subject to the waiver, estoppel or equitable tolling provided for
in 29 C.F.R. �1614.604(c). The agency stated that it had not waived
the time limits. It argued that estoppel was not applicable because
it had not engaged in any misconduct which prevented complainant from
timely filing his complaint. More specifically, the agency argued that
complainant had not provided it with written notice of his attorney's
name and address prior to issuing the Notice of Final Interview, and
that under 29 C.F.R. �1614.605(d), it was not obligated to serve the
attorney until it had received written notice. The agency also argued
that equitable tolling did not allow for the late filing of complainant's
formal complaint because the agency had not affirmatively done anything to
mislead complainant into filing beyond the 15-day limit, and complainant
had not filed a defective formal complaint within the 15-day period.
On appeal, complainant's attorney initially asserted that the agency
engaged in improper and bad faith counseling practices, because it
knew that complainant had misunderstood the pre-complaint counseling
form and had designated the EEO Counselor as his representative.
She argued that it was the responsibility of the agency to properly
explain the role of the EEO Counselor to complainant, and to insure that
complainant understood that the EEO Counselor was not his representative.
The attorney further argued that once the complainant was known to
have misunderstood that role, the burden shifted back to the agency
to correct his misunderstanding, which it failed to do. The attorney
also claimed that the 15-day time period never began to run because the
Notice of Final Interview had not been served on complainant's attorney.
Secondly, the attorney claimed that principles of equity justified
accepting the formal complaint as timely and that the Commission should
not enforce its time limits when it serves "no practical purpose."
The agency's failure to meet its counseling obligations and failure
to correct complainant's misunderstanding regarding his representative
estopped it from using complainant's failure to notify it of his attorney
as the reason why it had not sent the Notice to complainant's attorney.
The third argument advanced by complainant's attorney was that the agency
suffered no prejudice by receiving the formal complaint three days late,
on Monday, April 28, 1997. She argued that the agency actually received
the complaint earlier than it would have had complainant placed it in
the mail on April 25, 1997 (a Friday), and that it was only one working
day late. Lastly, the attorney argued that the complainant should be
awarded reasonable attorney's fees and costs if he prevails on this
appeal, because the dismissal of his complaint rose "to the level of
interference with complainant's right to pursue his complaint" and was
"an abuse of the administrative process."
The agency argued in response to complainant's brief that complainant
had clearly neglected to file his complaint within the 15-day time period
provided for in the regulations, and had clearly neglected to notify the
agency in writing of the existence of his attorney before the Notice of
Final Interview was issued to him. The agency explicitly noted the fact
that complainant had retained counsel prior to seeking counseling, and
that complainant's counsel was a "well-known law firm" which "specializes
in employment matters." The agency stated that it had engaged in no
affirmative misconduct in the course of counseling complainant which would
have caused complainant to file in an untimely manner. It also provided
a declaration from the EEO Counselor in which she stated that she had
telephoned the complainant after receiving his completed pre-complaint
counseling form that indicated she was his representative and explained
that as the EEO Counselor she could not function as his representative.
She also stated that at that time complainant did not inform her that
he had retained the services of an attorney. The agency responded to
complainant's equity argument by stating that complainant was on notice
that the agency did not consider him to be represented because when he
received a copy of the EEO Counselor's Report along with the Notice of
Final Interview the section regarding his representative was left blank.
The burden did not shift to the agency to inquire of complainant if he
had a representative. The agency further argued that the Commission
regulations dictate that it "shall dismiss" a complaint not filed within
the 15-day time period. Finally, the agency responded that complainant
was not entitled to any attorney's fees because it was not the agency's
actions which caused complainant to file an appeal, but rather his own
failure to adhere to Commission regulations.
In rebuttal to the agency's response, the complainant submitted an
affidavit in which he stated that the EEO Counselor had not called
him to clarify who his representative could be and thereby correct his
misunderstanding.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.106(b) requires the filing of a written
complaint with the agency that allegedly discriminated against the
complainant within fifteen (15) calendar days after the date of receipt
of the Notice of Right to File an Individual Complaint required by 64
Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.105(d) and �1614.105(f)) and 29 C.F.R. �1614.105(e).
A complaint is deemed timely if it is received or postmarked before the
expiration of the applicable filing period, or in the absence of a legible
postmark, if it is received by mail within five (5) 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(b)).
This time limit is subject to waiver, estoppel, or equitable tolling. 29
C.F.R. �1614.604(c). An agency shall dismiss a complaint which is
not filed within the 15-day time period. See 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified and hereinafter referred to as 29
C.F.R. �1614.107(a)(2)).
It is not disputed that complainant received the Notice of Final
Interview and Right to File an Individual Complaint on April 10, 1997.
The notice informed complainant of his right to file a complaint within
15 calendar days after receipt of the notice. Complainant filed a formal
complaint three days past the 15-day limit. It is also not disputed
that complainant had failed to notify the agency in writing that he had
retained an attorney on February 26, 1997, to act on his behalf in the
handling of his EEO complaint. Notwithstanding complainant's attorney's
arguments that the agency engaged in bad faith counseling when it did
not make sure that complainant understood who his "representative" was
supposed to be, it is still the burden of the complainant to notify
the agency in writing if he has retained an attorney, as specified
in 29 C.F.R. �1614.605(d). In the absence of this notification,
the agency had no obligation to serve the Notice of Final Interview
on complainant's attorney. It also had no obligation to inquire of
complainant the meaning of his comment allegedly stated to the EEO
Counselor that "me and my attorneys will deal with it." Therefore, we
find that the agency properly determined that complainant had untimely
filed his formal complaint and that it properly determined that the
untimely filing was not excused by waiver, estoppel or equitable tolling.
Accordingly, the decision of the agency was proper and is AFFIRMED.
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 (S1199)
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. 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. If you
file a request to reconsider and also file a civil action, 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:
Jan 24, 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:
_________________________
_________________________
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.