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).