Joe D. Moore, Complainant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionFeb 18, 2000
01a00530 (E.E.O.C. Feb. 18, 2000)

01a00530

02-18-2000

Joe D. Moore, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.


Joe D. Moore, )

Complainant, )

)

v. ) Appeal No. 01A00530

) Agency No. 980660

Daniel R. Glickman, )

Secretary, )

Department of Agriculture, )

Agency. )

____________________________________)

DECISION

On October 12, 1999, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) issued on August 12,

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 complainant's appeal in accordance with EEOC No. 960.001.<2>

ISSUE PRESENTED

The issue presented herein is whether the agency properly dismissed the

present case for untimely EEO counselor contact.

BACKGROUND

The record reflects that on January 29, 1998, complainant initiated

contact with an EEO Counselor. During the counseling period, complainant

states that his GS level did not properly reflect his duties that were

evaluated in October 1996. The record indicates that complainant received

notice of his GS level in March 1997, which he claims is incorrect.

Counseling failed, and on May 12, 1998, complainant filed a formal

complaint claiming that he was the victim of unlawful employment

discrimination on the bases of his race (white), gender (male) and age

(over-forty). The complaint was comprised of the matters for which

complainant underwent EEO counseling, discussed above.

On August 12, 1999, the agency issued its final decision dismissing the

present case for failure to initiate timely contact with an EEO counselor.

Specifically, the agency determined that the alleged discriminatory

event occurred in March 1997, and complainant's initial EEO contact on

January 29, 1998 occurred more than forty-five days after the purported

event occurred.

On appeal, complainant concedes that his initial EEO contact was

untimely, but he offers that he feared reprisals from management; he

was not provided information; and he was told that he would not receive

information pertaining to his desk audit.<3>

ANALYSIS AND FINDINGS

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.

However, 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 has failed to supply sufficient evidence

to support its decision. Specifically, in a decision dismissing a

complaint for untimely EEO Counselor contact, it is essential that the

agency initially establish that the complainant previously engaged the

EEO process or he was aware of the forty-five day limitations period.

This should be accomplished by establishing that the agency conspicuously

posted the EEO guidelines for all employees to see, or by demonstrating

that the complainant filed previous EEO complaints. In this case, the

record is void of any evidence that the complainant was made aware of

the limitations period in which an aggrieved must initiate contact with

an EEO Counselor or that he had previous involvement in the EEO process.

Therefore, the agency failed to support its decision.

CONCLUSION

For the reasons set forth herein, the Commission hereby REVERSES the

decision of the agency dismissing the present complaint for failure to

initiate timely contact with an EEO Counselor. Accordingly, the present

complaint is REMANDED to the agency for further processing in accordance

with this decision and applicable regulations.

ORDER (E1199)

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 an

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 (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 18, 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.

2Since the agency did not 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, 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).

3On December 2, 1999, the complainant submitted an addendum to his

appeal statement. The Commission will not consider the addendum because

it was submitted after the 30 day limitations period expired pursuant

to 64 Fed. Reg. 37,644, 37,659 (1999) (to be hereinafter codified at 29

C.F.R. 1614.403(d)) which provided, in relevant part, that any statement

in support of complainant's appeal must be submitted within 30 days from

filing the notice of appeal.