01a00570
04-27-2000
Frank H. Bielo, Jr., Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, (Federal Aviation Administration) Agency.
Frank H. Bielo, Jr., )
Complainant, )
)
v. ) Appeal No. 01A00570
) Agency No. 1-99-1049
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
(Federal Aviation Administration) )
Agency. )
____________________________________)
DECISION
On October 29, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) 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> The Commission accepts the complaint pursuant
to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. �
1614.405). For the reasons set forth below, we VACATE the FAD and REMAND
the complaint to the agency for a supplemental investigation consistent
with the ORDER below.
On January 13, 1999, complainant contacted the EEO office regarding his
claim of age discrimination. Informal efforts to resolve his concerns
were unsuccessful. Accordingly, on March 16, 1999, complainant filed a
formal complaint claiming that he was not hired for the position of Air
Traffic Control Specialist (Position) because of age discrimination.
The agency issued a FAD dismissing the complaint for untimely EEO
counselor contact. Specifically, the agency found that complainant was
aware of the discrimination as early as April 13, 1998, when he wrote a
letter to his United States Senator complaining about his non-selection
for the position, but that complainant did not contact the EEO office
until January 13, 1999, many months after the expiration of the 45 day
time limitation.
Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 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 forty-five (45) days of
the date of the matter alleged to be discriminatory or, in the case of
a personnel action, within forty-five (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 forty-five (45) day limitation period is triggered. See Howard
v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999).
Thus, 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.
Our review of the record discloses that in complainant's April 13,
1998, letter to his Senator, he questions the methodology used by the
agency in hiring for the position, stating the following: �I have not
been considered for rehire and would like to know if it is because
of experience or age, in other word (sic), I would like to know how
I am being judged.� Therefore, because complainant specifically
mentions age as a factor, we find that he had, or should have had,
a reasonable suspicion at this point that his non-selection may have
been discriminatory.
However, further review of the record additionally discloses that
complainant may have been unaware of his rights under the EEO process.
In this regard we note that the agency's written response to the Senator's
letter, dated June 24, 1998, explained its selection process, but failed
to mention that complainant may have recourse through the EEO process
if he suspected discrimination in his non-selection. Moreover, in a
letter dated January 13, 1999, which served as complainant's initial EEO
contact, complainant stated that he had worked in the private sector,
and only learned that he could pursue a claim of age discrimination with
a federal agency on December 31, 1998, when a friend who is knowledgeable
of the EEO complaint process informed him of this recourse.
The FAD did not address the issue of whether complainant had been aware
of the EEO complaint process at the time the alleged discrimination
occurred, or at any time up until he claimed to learn of it for the
first time on December 31, 1998. It is the Commission's policy that
constructive knowledge will be imputed when an employer has fulfilled
its obligation of informing employees of their rights and obligations
under the EEO process. Thompson v. Department of the Army, EEOC Request
No. 05910474 (September 12, 1991). However, the Commission has held
that a generalized affirmation that an agency posted EEO information,
without specific evidence that any poster or other method of providing
required information contained notice of the time limits, is insufficient
for constructive knowledge of the time limits for EEO Counselor contact.
Pride v. USPS, EEOC Request No. 05930134 (August 19, 1993). In the
instant case, the record is devoid of any evidence regarding whether the
agency provided any information of any kind to the complainant regarding
the availability of the EEO process. We are, therefore, unable to
determine whether complainant had been informed of the availability of
the EEO process, including the necessity of initiating timely contact
with an EEO Counselor.
Accordingly, the agency's decision is VACATED and the complaint is
REMANDED to the agency for further processing in accordance with this
decision and the Order below.
ORDER
The agency is ORDERED to take the following action:
The agency is ORDERED to conduct a supplemental investigation to ascertain
whether complainant had been informed of the availability of the EEO
process, including the necessity for initiating contact with an EEO
Counselor, and the time limits for doing so. The agency must specifically
identify when and how complainant was informed of the EEO process.
Thereafter, the agency will issue a final decision or notify complainant
that the agency is processing his complaint. The supplemental
investigation and issuance of the final decision or notice of processing
must be completed within thirty (30) calendar days of the date this
decision become final. A copy of the agency new final decision 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION
(R0400)
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:
April 27, 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 Assistant1On 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.