James Edwards, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJul 13, 2000
01995698 (E.E.O.C. Jul. 13, 2000)

01995698

07-13-2000

James Edwards, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


James Edwards v. Department of Veterans Affairs

01995698

July 13, 2000

James Edwards, )

Complainant, )

)

v. ) Appeal No. 01995698

) Agency No. 991519

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

)

____________________________________)

DECISION

INTRODUCTION

Complainant filed a timely appeal with this Commission from the final

agency decision dated June 11, 1999, dismissing 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 appeal in accordance with 64 Fed. Reg. 37,

644, 37, 659 (1999)(to be codified at 29 C.F.R. � 1614.405).

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed complainant's

complaint for untimely EEO Counselor contact.

BACKGROUND

Complainant contacted the EEO Counselor on January 8, 1999, and filed

a formal complaint on February 8, 1999, alleging non-selection for

a promotion in violation of the ADEA. In his complaint, complainant

alleged that he was subjected to discrimination on the basis of age (DOB:

8/15/44) when: on October 15, 1998, and November 17, 1998, he was not

promoted to a full-time position in the Food Production Service after

management told complainant he would be promoted within sixty days.

In a final agency decision, the agency dismissed complainant's claim

pursuant to EEOC Regulation 29 C.F.R. � 1614.105(a)(1) for failing to

initiate contact with an EEO Counselor within forty-five days of the

alleged discriminatory event.

ANALYSIS AND FINDINGS

The EEOC Regulation set forth at 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 at 29 C.F.R. � 1614.105(a)(2) further 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 present case, complainant and his representative met with

management to discuss a promotion from his part-time status to a full-time

employee on October 15, 1998, and November 17, 1998.<2> Prior to

the meeting, complainant was not selected for this promotion when two

positions for Food Service Worker were filled by employees considerably

younger than the complainant. According to the EEO Counselor's Final

Report, complainant contends that management committed to converting

his position to a full-time status within sixty (60) days of meeting

with management.

The Commission considers sixty days past complainant's meetings in

October and November of 1998 the dates of the discriminatory events

since his actionable claim stems from management's alleged unfulfilled

promise to promote him to full-time status. We find that the final

agency decision improperly uses February 1, 1998, the day complainant

was notified of his non-selection, as the discriminatory date used to

determine the onset of the forty-five day period. The Commission thus

finds that complainant could not reasonably suspect discrimination for

non-promotion until after the expiration of sixty days, falling in either

mid-December 1998 or January 1999.<3> Therefore, we find complainant's

contact with an EEO Counselor in early January 1999 timely.

CONCLUSION

The Commission finds the agency's decision dismissing the complaint

for untimely EEO Counselor contact improper and we hereby REVERSE the

decision. The complaint is REMANDED to the agency for further processing

in accordance with this decision and the Order below.

ORDER (E0400)

The agency is ORDERED to process the remanded claims in accordance with

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to

the complainant that it has received the remanded claims within thirty

(30) calendar days of the date this decision becomes final. The agency

shall issue to complainant a copy of the investigative file and also shall

notify complainant of the appropriate rights within one hundred fifty

(150) calendar days of the date this decision becomes final, unless the

matter is otherwise resolved prior to that time. If the complainant

requests a final decision without a hearing, the agency shall issue

a final decision within sixty (60) days of receipt of complainant's

request.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights 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

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:

07-13-00

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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.

2 The EEO Counselor's report documents that complainant and his

representative met with the Chief of Food Production Section on the

aforementioned dates in October and November to discuss his promotion.

The FAD fails to deny complainant's belief that management promised to

promote him to a full-time position within sixty days of the meeting.

3 The expiration of sixty days could be calculated from either the

initial meeting with management in October, or the second meeting in

November. The Commission finds it irrelevant whether it was the first

or second meeting in which management committed to promote complainant

within sixty days because both time frames are within the forty-five

day limit to contact an EEO Counselor.