01986478
06-15-1999
Hayden A. Gray, Appellant, v. Aida Alvarez, Administrator, Small Business Administration, Agency.
Hayden A. Gray v. Small Business Administration
01986478
June 15, 1999
Hayden A. Gray, )
Appellant, )
)
v. ) Appeal No. 01986478
) Agency No. 03-98-030
Aida Alvarez, )
Administrator, )
Small Business Administration, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency 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. The final decision was issued on July 20, 1998.
The appeal was postmarked August 21, 1998. Accordingly, the appeal is
considered timely<1> (see 29 C.F.R. �1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.
On June 25, 1997, appellant initiated contact with an EEO Counselor.
Informal efforts to resolve his concerns were unsuccessful.
On March 10, 1998, appellant filed a formal complaint, alleging that
he was the victim of unlawful employment discrimination on the basis of
reprisal.
On July 20, 1998, the agency issued a final decision. Therein, the
agency determined that appellant's formal complaint was comprised of
three allegations, that were identified in the following fashion:
1. On August 5, 1994, [appellant] requested and [was] denied a
non-competitive permanent appointment and promotion to the GS-11 level.
2. On October 16, 1995, [appellant] received a Fully Successful rating
in the Quality of Work category of [his] Performance Evaluation.
3. On July 23, 1996, there was a submission of misinformation and
omission of critical facts during a desk audit.
The agency dismissed allegations 1 - 3 for failure to initiate timely
contact with an EEO Counselor. The agency found that all the matters
raised in these allegations purportedly occurred more than forty-five
days prior to appellant's initial EEO Counselor contact in June 1997.
The agency further found that on February 14, 1997, appellant filed a
grievance on the same matters raised in the instant complaint; and that
appellant learned halfway through the grievance process that the agency
District Office where he is employed was not represented by the Union.
The agency determined, however, that appellant had an EEO complaint
history and should, therefore, have been aware of the necessity for
timely contacting an EEO Counselor. Specifically, the agency found that
appellant had filed two prior EEO complaints and was made aware of the
time limitation during the informal EEO counseling stage for both prior
complaints. The agency further determined that appellant had, or should
have had, a reasonable suspicion of unlawful employment discrimination
no later than October 25, 1996, the date that he purportedly received
the desk audit that is the subject of allegation 3.
On appeal, appellant argues that many months after filing a grievance
in February 1997, the agency advised him that the master agreement with
the American Federation of Government Employees (AFGE) did not apply
to the Jackson, Mississippi office, where he is employed. Appellant
argues that when he pursued the grievance process, he was unaware of
the inapplicability of the master agreement to his facility. Appellant
further argues that the agency, though aware of the inapplicability of
the master agreement in his case, nonetheless allowed him to pursue
the grievance process. Moreover, appellant argues that the limitation
period for timely contacting an EEO Counselor should be extended, because
the agency permitted him to pursue the grievance process fruitlessly.
Appellant further argues that the agency was "in a much better position
to know of the time limitations than [appellant] and never did they
advise him of any problem with timeliness."
In response, the agency argues that appellant's pursuit of the grievance
process was irrelevant to his delay in initiating EEO Counselor contact.
Specifically, the agency argues that the earliest alleged discriminatory
event raised in his complaint (addressed in allegation 1) occurred more
than two years prior to appellant's pursuit of a grievance, in February
1997. The agency further argues that appellant should have reasonably
suspected that he was a victim of discrimination no later than October
25, 1996, the date that he received the results of the desk audit that
is the subject of allegation 3.
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 Ball v. USPS,
EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
It is the Commission's policy that constructive knowledge will be
imputed to an employee when an employer has fulfilled its obligation
of informing employees of their rights and obligations under Title VII.
Thompson v. Department of the Army, EEOC Request 05910474 (September 12,
1991). However, the Commission has held that a generalized affirmation
that an agency posted EEO information, without specific evidence that
the poster 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).
The agency stated in its final decision that because appellant filed two
prior EEO complaints, he was aware of the limitation period to timely
contact an EEO Counselor. The record, however, contains no evidence
supporting this finding. On appeal, appellant argues that he was unaware
of the limitation period for timely contacting an EEO Counselor. Based on
the present record, we are unable to ascertain whether appellant had
been informed of the necessity for timely contacting an EEO Counselor.
In its final decision, the agency also determined that appellant
had or should have had a reasonable suspicion of unlawful employment
discrimination no later than October 25, 1996, the date that the agency
indicated appellant received the results of the desk audit that is the
subject of allegation 3. We are unable to ascertain from the present
record precisely when appellant first developed a reasonable suspicion
of unlawful employment discrimination regarding the matters set forth
in allegations 1 - 3.
Accordingly , the agency's dismissal of appellant's complaint is VACATED.
Appellant's complaint is REMANDED to the agency for further processing
in accordance with the ORDER below.
ORDER
The agency is ORDERED to take the following action:
1. The agency is ORDERED to conduct a supplemental investigation to
ascertain whether appellant had been informed of the necessity for
initiating contact with an EEO Counselor and the time limits for doing
so, and when appellant had been so informed. The agency's supplemental
investigation shall include the specific documentation, if available,
which explicitly delineated the limitation period for contacting an EEO
Counselor, as well as any statement from agency officials who addressed
this issue with appellant.
2. The agency is also ORDERED to provide appellant with the opportunity
to provide information regarding the exact date that he became aware
that he was the victim of unlawful employment discrimination regarding
the matters set forth in allegations 1 - 3; the information that
appellant received that caused him to believe that he was the victim of
discrimination; and the manner in which he received this information;
and how the information triggered a suspicion of unlawful employment
discrimination.
Within fifteen (15) calendar days of the date that this decision becomes
final, the agency shall notify appellant that he has (15) calendar days
from the date of his receipt of the agency's notification to provide the
agency with the information outlined in provision 2 above. The agency
shall have fifteen (15) calendar days from the date of its receipt of
appellant's response to issue a final decision or to notify appellant
that the agency is processing his complaint.
A copy of the agency's notice to appellant requesting the supplemental
information outlined in provision 2, 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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 29 C.F.R. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
June 15, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 The dismissal of a complaint or a portion of a complaint may be
appealed to the Commission within thirty (30) calendar days of the date
of the complainant's receipt of the dismissal or final decision. See 29
C.F.R. �1614.402(a). Because the agency failed on appeal to supply a
copy of the certified mail receipt or any other material capable of
establishing that date, the Commission presumes that the appeal was
filed within thirty (30) calendar days of the date of appellant's
receipt of the final decision.