01A10361
01-05-2001
John Giagnorio, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
John Giagnorio v. U.S. Postal Service
01A10361
January 5, 2001
.
John Giagnorio,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A10361
Agency No. 4-B-040-0015-00
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated September 5, 2000, dismissing his complaint of unlawful
employment discrimination brought pursuant to Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., and the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et seq.<1> The
Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
Complainant contacted an EEO Counselor on April 3, 2000, regarding his
non-selection for a custodian position. When counseling did not resolve
his concerns, complainant filed a formal complaint against the agency
on August 2, 2000. In his complaint, complainant claimed discrimination
on the bases of disability and reprisal (filing prior EEO complaint).
The agency dismissed the complaint on the grounds of untimely EEO
Counselor contact. The agency found that although complainant identified
the date of the discrimination as �March 2000,� this was incorrect
because the �effective date� of the selection for the custodian position
was February 12, 2000. Therefore, using February 12, 2000, the agency
concluded that complainant's initial EEO Counselor contact on April 3,
2000, did not fall within the forty-five-day time limitation. The agency
additionally found that complainant was aware of this time limitation
because of his prior participation in the EEO process, and that he failed
to provide any reasons to justify his late EEO Counselor contact.
Complainant now appeals this determination. In response, the agency
provides documentary evidence to demonstrate that the selection for
the custodian position was effective February 12, 2000, and that the
selectee first worked in the position on February 14, 2000, averring that
this evidence confirms complainant's untimely EEO Counselor contact.
The agency also provides a copy of a letter to complainant from the
selecting official, dated March 22, 2000, in response to a previous
discussion with complainant, reiterating the identification of the
selectee and setting forth a purported explanation for complainant's
non-selection.
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) requires that complaints of
discrimination should be brought to the attention of the EEO 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.
The Commission determines that the agency improperly dismissed the
instant complaint. The agency asserts that the time limit for EEO
Counselor contact should be calculated based on either the effective date
of the selection, or the date the selectee first worked in the position.
However, the Commission determines that the record is devoid of any
evidence that complainant was, or should have been, aware of either of
these events. Specifically, there is no evidence that complainant and
the selectee were contemporaneously notified of the selection decision,
or that the agency at any time informed complainant of the effective
date that the selectee was awarded the position. Also, there is no
evidence that complainant witnessed, or should have witnessed selectee
in the position on his first day on the job. Although the March 22,
2000 letter indicates that complainant was aware of the non-selection
prior to the date of the letter, there is no reference to a specific
date on which complainant first learned of his non-selection.
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). 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.�
In this case, we find that the record fails to show that complainant
learned of his non-selection, or suspected that it was discriminatory,
more than forty-five days prior to his April, 4, 2000 initial EEO
Counselor contact. Therefore, we REVERSE the agency's dismissal, and
REMAND the case for further processing as set forth in the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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 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 (K0900)
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)(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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
January 5, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.