01A13379_r
08-08-2002
Jeannie B. Thomas, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Jeannie B. Thomas v. Department of the Treasury
01A13379
August 8, 2002
.
Jeannie B. Thomas,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A13379
Agency No. 01-1099
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dated March 18, 2001, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), 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.
On January 10, 2001, complainant initiated contact with an EEO Counselor.
When informal efforts to resolve complainant's claim proved unsuccessful,
complainant filed a formal complaint on February 16, 2001. In her
complaint, complainant alleged that she was subjected to discrimination
on the bases of race, sex, and age when the agency failed to select
her for the position of Management and Program Analyst, GS-343-12/13.
In its final decision, the agency dismissed complainant's complaint,
pursuant to EEO Regulation 29 C.F.R. � 1614.107(a)(2). Specifically,
the agency determined that complainant initiated untimely EEO Counselor
contact. The agency noted that in her complaint, complainant stated that
a co-worker learned on October 20, 2000, the identity of the selectee
for the Management and Program Analyst position. The agency concluded
that complainant learned of her non-selection from her co-worker when
she returned to work on October 30, 2000, more than forty-five days
before she initiated EEO contact on January 10, 2001.
On appeal, complainant maintains that the information she received from
her coworker on October 30, 2000, constituted an unconfirmed �rumor� that
should not toll the applicable time limits. Complainant maintains that
the time limits were not triggered until she received official notice
from the agency on November 28, 2000.
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.
Upon review, the Commission determines that the agency improperly
dismissed complainant's complaint. The agency determined that complainant
received notice of her non-selection from a co-worker when she returned
to work on October 30, 2000; however, the Commission determines that
this second-hand information from such a source was insufficient to
trigger the applicable time limits. The Commission notes that the
record contains a memorandum to complainant dated November 3, 2000,
wherein an agency staffing specialist stated that complainant was not
selected for the Management and Program Analyst position. However, the
Commission further notes that the record contains a document prepared by
complainant that states that on the week of November 28, 2000, complainant
received the November 3, 2000 letter from the agency. We note that where
there is an issue of timeliness, the agency bears the burden of obtaining
sufficient information to support a reasoned determination of 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). Moreover, the Commission has held that the "agency
has the burden of providing evidence and/or proof to support its final
decisions." Ericson v. Department of the Army, EEOC Request No. 05920623
(January 14, 1993). In the absence of any contrary evidence from the
agency regarding when complainant received its notice, we are persuaded
that complainant received official notice of her non-selection on November
28, 2000. Consequently, we find that complainant initiated timely EEO
Counselor contact on January 10, 2001.
Accordingly, the Commission REVERSES the agency's dismissal of
complainant's complaint and REMANDS this matter to the agency for further
processing consistent with the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim 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 (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 8, 2002
__________________
Date