James P. Yaeger, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionFeb 15, 2000
01993867 (E.E.O.C. Feb. 15, 2000)

01993867

02-15-2000

James P. Yaeger, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


James P. Yaeger, )

Complainant, )

)

v. ) Appeal No. 01993867

) Agency No. DON-99-65888-009

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

____________________________________)

DECISION

On April 7, 1999, complainant filed an appeal with this Commission from

a final agency decision (FAD) dated February 26, 1999, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as

amended, 29 U.S.C. � 621 et seq.<1> The Commission accepts the appeal as

accepted as timely pursuant to EEOC Order No. 960, as amended.<2> In his

complaint, complainant alleged that he was subjected to discrimination on

the bases of age and in reprisal for prior EEO activity when on May 18,

1998, complainant became aware that he was not selected for an Aircraft

Launching and Arresting Device Mechanic position, WG-5301-10.

The agency dismissed the complaint for untimely counselor contact.

Specifically, the agency found that complainant did not contact a

counselor until September 1, 1998, 105 days after he allegedly discovered

the non-selection.

On appeal, complainant argues that the agency used the wrong incident

date. Complainant claims that he did not become aware of his

non-selection until August 18, 1998.

In response, the agency argues that complainant asserted that he was

aware of the non-selection on May 18, 1998. Further, the agency notes

that the actual selection did not take place until May 29, 1998, also more

than forty-five days prior to complainant's September 1, 1998 contact.

In his formal complaint, dated December 7, 1998, the dates August 18,

1998 and May 18, 1998 are superimposed over one another. To further

the confusion, the undated Counselor's Report listed the incident date

as August 18, 1998 in two separate places, but also used May 18, 1998

as the incident date in two places in the text of the report.

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.

Where, as here, there is an issue of timeliness, "[a]n agency always bears

the burden of obtaining sufficient information to support a reasoned

determination as to timeliness." Guy, v. Department of Energy, EEOC

Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of

Defense, EEOC Request No. 05920506 (August 25, 1992)). In addition, in

Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14,

1993), the Commission stated that �the agency has the burden of providing

evidence and/or proof to support its final decisions.� See also Gens

v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992).

In the present case, the agency failed to carry its burden that

complainant was aware of the non-selection on May 18, 1998. In fact,

the agency admits on appeal that the selection was not made until May

29, 1998. However, complainant does not explain how he suspected

discrimination on August 18, 1998, and why he did not realize he

was being discriminated against prior to that date. Therefore, the

Commission cannot determine from the present record when complainant

gained a reasonable suspicion of discrimination, and the agency must

supplement the record on remand.

CONCLUSION

Accordingly, the agency's dismissal is VACATED, and the complaint is

REMANDED for further processing.

ORDER

The agency is ORDERED to conduct a supplemental investigation. In this

investigation, the agency must perform the following:

Obtain an affidavit or statement from complainant regarding the date

on which complainant became aware of his non-selection. The agency

must request that complainant provide the date he became aware

of the non-selection and how he became aware of the non-selection.

If complainant contends that he did not reasonably suspect discrimination

when he learned of his nonselection, the agency should inquire as to

why and when complainant first suspected that the selection made was

discriminatory.

Obtain any other relevant information regarding complainant's

non-selection including, but not limited to, any memoranda, notices,

e-mails, or other transmissions announcing the selection.

Obtain information to support its contention that complainant was aware

of his non-selection on May 18, 1998, although the agency admits that

no selection was made until May 29, 1998.

Once completed, the agency shall provide complainant with a copy of

the supplemental investigation. Thereafter, the agency shall issue a

new final decision or notice of processing regarding the timeliness of

complainant's counselor contact. The agency shall issue this decision

or notice within forty-five (45) calendar days of the date this decision

becomes final, and shall explain its decision, based on the information

provided in the supplemental investigation and applicable EEO regulations.

Further, the agency must send a copy of the final decision or notice of

processing 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 (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION

(R1199)

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:

February 15, 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.

2The agency was unable to supply a copy of a certified mail return

receipt or any other material capable of establishing the date complainant

received the agency's dismissal, final action or decision. Accordingly,

since the agency failed to submit evidence of the date of receipt, the

Commission presumes that complainant's appeal was filed within thirty

(30) days of receipt of the agency's dismissal, final action or decision.

See, 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified and hereinafter

cited as 29 C.F.R. � 1614.402).