01a00432
04-17-2000
Hayden A. Gray, Complainant, v. Aida Alvarez, Administrator, Small Business Administration, Agency.
Hayden A. Gray, )
Complainant, )
)
v. ) Appeal No. 01A00432
) Agency No. 03-98-030
Aida Alvarez, )
Administrator, )
Small Business Administration, )
Agency. )
____________________________________)
DECISION
On March 10, 1998, complainant filed a formal complaint alleging a
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. on the basis of reprisal when:
On August 5, 1994, complainant requested and was denied a non-competitive
permanent appointment and promotion to the GS-11 level;
On October 16, 1995, complainant received a Fully Successful rating in
the Quality of Work category of his Performance Evaluation; and
On July 23, 1996, there was a submission of misinformation and omission
of critical facts during a desk audit.
In a final decision (FAD) issued July 20, 1998, the agency dismissed
the claims for untimely counselor contact, finding that complainant
failed to contact a counselor until June 1997. On August 21, 1998,
complainant appealed to this Commission. On appeal, complainant argued
that he was unaware of time limitations, and that �never did [the agency]
advise [complainant] of any problem with timeliness.� We remanded the
claims, and ordered the agency to determine when complainant acquired a
reasonable suspicion of discrimination, and whether he had constructive
notice of the applicable time limitation. See Gray v. Small Business
Administration; EEOC Appeal No. 01986478 (June 15, 1999).
In its supplemental investigation, the agency interviewed both complainant
and the EEO Counselor at complainant's facility. In this investigation,
complainant admitted to acquiring a reasonable suspicion of discrimination
on February 3, 1997. Complainant filed a grievance on February 14,
1997, but did not contact an EEO Counselor until June 25, 1997, after
he contacted the local EEOC District Office for help. The Counselor
stated that everyone in their small, twenty-five employee facility
knew she served as EEO Counselor. According to the EEO Counselor,
complainant was told by the EEOC District Office that he had 180 days
to seek counseling.
The investigation also revealed that the relevant time limits were
prominently posted. The agency included a copy of the poster in its
file, entitled �Overview of Federal Sector Complaint Processing under
29 C.F.R. Part 1614." This poster provides that only forty-five days may
elapse between the incident and counselor contact, but does not provide
information on how to contact a counselor.
Based on the information gleaned in its investigation, the agency issued a
new FAD on September 22, 1999, again dismissing the claims for untimely
counselor contact. Specifically, the agency found that complainant
had notice of the applicable time limits, had notice of exactly who he
should contact, but failed to contact a counselor within forty-five days
of acquiring a reasonable suspicion. On October 14, 1999, complainant
filed the present appeal from the September 22, 1999 FAD.<1> The appeal
is timely, and is accepted for review pursuant to 64 Fed. Reg. 37,644,
37, 659 (1999) (to be codified at 29 C.F.R. � 1614.405).
On appeal, complainant argues that the �Overview� poster was unclear.
Further, complainant contends that he first learned of the applicable time
limit after he began counseling for his present complaint. Complainant
further argues that he requested a waiver of the forty-five day time
limit, which was granted when the Assistant Administrator of EEO and
Civil Rights Compliance advised the EEO Counselor to counsel complainant.
Complainant attached an e-mail dated June 15, 1997, requesting such a
waiver. In this e-mail, complainant also states that the only time limit
he was aware of was the 180-day time limit published by the Commission
in a document concerning the Americans with Disabilities Act (ADA), which
was confirmed by the EEOC District Office. Complainant also attached an
e-mail from the EEO Assistant Administrator, directing the EEO Counselor
to counsel complainant, to ask him why he missed the forty-five day time
limitation, and to include his response in the Counselor's Report.
In response, the agency argues that it has an obligation to counsel anyone
who requests counseling, regardless of the date such request is made.
The agency also reiterates that the supplemental investigation supports
its dismissal for untimeliness.
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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The Commission finds that complainant had a reasonable suspicion
of discrimination and was aware of applicable time limits more
than forty-five days prior to his June 25, 1997 counselor contact.
Complainant admits knowledge of the �Overview� poster, but claims he did
not understand it. The Commission finds that the poster was patently
clear -- complainant had forty-five days from the occurrence to contact
a counselor.
We also note that complainant's arguments include several inconsistencies.
In his prior appeal, complainant claims that he was never informed that
timeliness was a problem. In the present appeal, however, complainant
contends that he was informed of the time limitation and requested a
waiver. His submissions on appeal also showed that the EEO Counselor was
instructed to question complainant regarding the reasons for his delay.
Complainant informed the counselor that the EEOC District Office provided
misinformation; but in his e-mail concerning waiver, complainant explained
that he believed the time limit was 180 days based on a document he
read concerning the ADA. Complainant has not provided a copy of this
document, nor has he alleged any harm pursuant to the ADA. Therefore,
the Commission finds that complainant's arguments do not justify an
extension or waiver of applicable time limits.
CONCLUSION
Accordingly, the agency's dismissal is AFFIRMED.
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 (S0400)
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:
April 17, 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.