01984616
11-18-1999
Jerry L. R. Chandler, Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Jerry L. R. Chandler, )
Complainant, )
)
v. ) Appeal No. 01984616
) Agency No. NINDS - 970066
Donna E. Shalala, )
Secretary, )
Department of Health and Human )
Services, )
Agency. )
)
DECISION
The Commission finds that the agency's March 5, 1998 decision dismissing
Complainant's complaint on the basis of untimely EEO counselor contact,
is proper pursuant to the provisions of 29 C.F.R. �1614.107(a)(2).
The record shows that Complainant sought EEO counseling on March 30,
1997, alleging that he had been discriminated against on the bases of age
(02/14/40), religion (Catholic) and reprisal for prior EEO activity when
on April 1, 1996, he was forced to retire.
The agency issued a final decision dismissing the complaint on the
grounds of untimely EEO counselor contact after finding that Complainant
had failed to seek EEO counseling within the 45-day time limit provided
by EEOC Regulations when he sought counseling �363 days after the date
of the personnel action retiring him from service�.
On appeal, Complainant contends that after being forced to retire in April
1996, he initiated a request with the Office of the Inspector General on
or about November 24, 1996, to investigate the agency's improper actions.
Complainant further claims that he was unaware of his EEO rights until
he spoke to an attorney in March 1997, who allegedly mentioned the issue
of age discrimination.
On appeal, the agency contends that Complainant was provided with
constructive notice of his EEO rights because �written materials
concerning the EEO Complaint Process were both posted and made available
to all employees at the NINDS building facility where Complainant was
employed�. The agency has provided a declaration under penalty of perjury
issued by the agency's EEO Officer in which he states that �during the
period of April 1, 1991, until April 1, 1996, written materials concerning
the EEO complaint processing were posted and made available to all
employees at the NINDS building facility where Complainant was employed�.
Complainant argues that he was unaware his forced retirement was
discriminatory until March 1997, when he spoke to an attorney. The
Commission has adopted a reasonable suspicion standard for determining
whether contact with an EEO counselor is timely. Ball v. United States
Postal Service, EEOC Request No. 05880247 (July 6, 1988). Under this
standard, the regulatory limitations period �is not triggered until a
complainant reasonable suspects discrimination, but before all the facts
that would support a charge of discrimination have become apparent�.
Bracken v. United States Postal Service, EEOC Request No. 05900065 (March
29, 1990). While Complainant claims that he was unaware of any possible
discrimination, the record suggests otherwise. Complainant contacted the
Office of the Inspector General in November 1996, because he wanted an
investigation of the agency's improper actions.<1> Complainant's conduct
persuades the Commission that, at least, he suspected discrimination
before he allegedly spoke to an attorney in March 1997.
Nevertheless, the Commission has held that where there is an issue of
timeliness, the agency always bears the burden of obtaining sufficient
information to support a reasoned determination as to timeliness.
Williams v. Department of Defense, EEOC Request No. 05920506 (August
25, 1992). Concerning Complainant's complaint, the agency has not met
its burden. We have held that constructive knowledge of EEO rights
and the time limit for contacting an EEO counselor will be imputed
to a complainant where the agency has fulfilled its statutory duty of
posting notices informing employees of their rights and obligations under
Title VII. Thompson v. Department of the Army, EEOC Request No. 05910474
(September 12, 1991). Here, the agency has submitted evidence to show
that EEO notices were posted on bulletin boards during Complainant's
tenure at the agency. However, said evidence does not show that the EEO
notices included the applicable time limits for EEO counselor contact.
We find that this evidence is insufficient to demonstrate that Complainant
had constructive knowledge of the EEO process, as well as the time limits
for contacting a counselor.
Accordingly, the dismissal of the complaint was improper and is hereby
VACATED. The complaint is REMANDED for a supplemental investigation in
accordance with this decision and applicable regulations.
ORDER
The agency is ordered to conduct a supplemental investigation regarding
Complainant's claim that he was unaware of the 45-day time limit.
Within sixty (60) days of the date this decision becomes final, the agency
shall provide affidavits from the appropriate agency officials regarding
the fact that EEO posters with applicable time limits were posted in the
agency's premises. Said affidavits will state the exact location of the
EEO posters as well as the dates in which they were placed in the agency's
premises. If during the course of the supplemental investigation the
agency finds that Complainant should have had knowledge of the applicable
time limits, it shall then issue a final decision dismissing the complaint
and will provide Complainant with all relevant information concerning
his appeal rights. However, if during the course of its supplemental
investigation, the agency finds that Complainant was in fact unaware of
the 45-day time limit, it shall then process the complaint pursuant to
the provisions of 29 C.F.R. �1614.108. A copy of the agency's letter
of acceptance to Complainant and/or a copy of the final agency decision
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 (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).
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:
November 18, 1999
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:
_________________________
1 The Commission has specifically held that internal efforts or appeals
of an agency's adverse action and/or the filing of a grievance do
not toll the running of the time limit to contact an EEO counselor.
See Hosford v. Department of Veterans Affairs, EEOC Request No. 05890038
(June 9, 1989).