01980901
10-14-1998
Henry S. Bush Jr., Appellant, v. Maj. Gen. Donald C. Hilbert, USA Ret., Director, Soldiers' & Airmen's Home, Agency.
Henry S. Bush Jr., )
Appellant, )
)
v. ) Appeal No. 01980901
) Agency No. 97-08-05
Maj. Gen. Donald C. Hilbert, )
USA Ret., )
Director, )
Soldiers' & Airmen's Home, )
Agency. )
______________________________)
DECISION
On November 10, 1997, appellant filed a timely appeal from a final agency
decision (FAD) dated October 27, 1997, pertaining to 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 Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. �621 et seq., and Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. �791 et seq. In his complaint, appellant
alleged that he was subjected to discrimination on the bases of race
(Black), age (62), and physical disability (unspecified) when he was
not selected for the position of Boiler Plant Operator "BPO position"),
(WG-5402-07) under Vacancy Announcement No. 97-32.
The agency dismissed appellant's complaint pursuant to EEOC Regulation
29 C.F.R. �1614.107(b), for failure to initiate contact with an EEO
Counselor in a timely manner. Specifically, the agency determined that
because appellant acknowledged that he knew that he was not selected
for the BPO position in April 1997, appellant's June 30, 1997 initial
EEO Counselor contact was beyond forty-five (45) days from when the
discrimination occurred, and, therefore, untimely.
On appeal, appellant contends that he was not informed that a selection
was made for the BPO position until July 14, 1997. Up until that time,
appellant asserts that he was told by the agency's Personnel Specialist
that no one had yet been selected.
In response, the agency asserted that appellant acknowledged to the
EEO Counselor that he was aware of his non-selection in April 1997.
Additionally, the agency notes that, on his formal complaint, appellant
identified the dates of the alleged discrimination as occurring in
January and April 1997.
The Commission notes that the agency provided no evidence, such as an
affidavit from the EEO Counselor, to support its position that appellant
was aware of his non-selection in April 1997. Additionally, appellant
offered no explanation as to why he identified the dates of discrimination
as occurring in January and April 1997.
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 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.
In the instant case, we find that there is insufficient information in
the record to make a decision regarding the timeliness of appellant's
initial EEO Counselor contact. Appellant contends that he was unaware of
his nonselection until July 14, 1997. The agency contends that appellant
acknowledged to the EEO Counselor that he became aware of his nonselection
in April 1997. We find that a supplemental investigation is necessary
to determine the date from which the time limit for initiating timely
EEO contact tolled.
CONCLUSION
Accordingly, the agency's final decision dismissing appellant's complaint
is hereby VACATED. 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 actions:
The agency shall request in writing that appellant describe the
circumstances under which he learned of his nonselection for the BPO
position at issue. Appellant shall be required to specify the date and
manner in which he received such information, including the name of any
persons involved. The agency, in turn, shall obtain a sworn statement
from any identified individuals and supplement the record with any
additional relevant documentation regarding when appellant became aware
of the subject nonselection.
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall issue a notice of processing and/or a new FAD regarding
appellant's complaint.
A copy of the agency's notice of processing and/or new FAD 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. �1614.10.
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:
Oct. 14, 1998
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations