John Hartley, Complainant,v.Ray H. LaHood, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionNov 13, 2009
0120093048 (E.E.O.C. Nov. 13, 2009)

0120093048

11-13-2009

John Hartley, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.


John Hartley,

Complainant,

v.

Ray H. LaHood,

Secretary,

Department of Transportation,

Agency.

Appeal No. 0120093048

Agency No. 2009-22461-FAA-06

DECISION

Complainant filed a timely appeal with this Commission from the final

agency decision dated June 11, 2009, dismissing his formal 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 December 24, 2008, complainant initiated EEO Counselor contact.

Informal efforts to resolve his concerns were unsuccessful.

On April 7, 2009, complainant filed the instant formal complaint.

Therein, complainant alleged that he was subjected to harassment and

a hostile work environment on the bases of race, national origin, sex,

religion, color and age when:

1. on August 1, 2008, he was taken off the CAEG project;

2. on September 5, 2008, he was required to submit a random drug test;

and

3. on October 27, 2008, his performance meeting turned into a "grilling

session."

In its June 11, 2009 final decision, the agency dismissed complainant's

formal complaint on two grounds. First, the agency dismissed the

formal complaint on the grounds of untimely EEO Counselor contact,

pursuant to 29 C.F.R. � 1614.107(a)(2). Second, the agency dismissed

the formal complaint on the alternative grounds that the matter raised

in these claims state the same matters that were raised in a negotiated

grievance procedure that permits clams of discrimination to be raised,

pursuant to 29 C.F.R. � 1614.107(a)(4).

On appeal, complainant, through his attorney, argues that his initial

EEO Counselor contact was timely. Specifically, complainant argues that

the Civil Rights representative of the agency (hereinafter referred to as

"R1"), in an email dated November 12, 2008, gave him until December 27,

2008, to initiate his complaint of discrimination. Complainant notes,

therefore, that he made a timely EEO contact on December 24, 2008.

Untimely EEO Counselor Contact

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.

The agency improperly dismissed complainant's complaint on the grounds of

untimely EEO Counselor contact. The record contains a copy of R1's email

dated November 12, 2008 to complainant. Therein, R1 stated, "I hope I

was able to give you some useful information regarding the EEO Process.

I have attached further information here. As we discussed, 11/12/2008

is the date that you became aware that you could file an EEO complaint

on the matter at hand while still using the Accountability Board process;

the forty-fifth date is 12/27/2008 [emphasis added]. If you would like to

file your complaint with me or the Intake Unit, I would advise doing so

before 12/24/2008." There is also not sufficient evidence in the record

showing complainant had actual or constructive notice of a time limit

for contacting an EEO Counselor other than the one provided him by R1.

The Commission has held that where there is an issue of timeliness,

the agency always bears the burden of obtaining information to support

a reasoned determination as to timeliness. Williams v. Department of

Defense, EEOC Request No. 05920506 (August 25, 1992). The agency has

not met this burden.

Negotiated Grievance

An agency subject to 5 U.S.C. � 7121(d) may dismiss an EEO complaint

where the matter was first raised in a negotiated grievance procedure

that permits claims of discrimination to be raised. See 29 C.F.R. �

1614.107(a)(4). The collective bargaining agreement must allow employees

to raise matters of alleged discrimination under the 29 C.F.R. Part 1614

EEO process or under the negotiated grievance procedure, but not both.

An election to proceed under a negotiated grievance procedure is made by

the filing of a written grievance irrespective of whether the agency has

informed the individual of the need to elect or whether the grievance has

actually raised an issue of discrimination. See 29 C.F.R. � 1614.301(a).

Complainants elect the EEO process by filing a formal EEO complaint

prior to filing a timely written grievance. See id. EEO counseling,

intended to define the claims and promote informal resolution prior to

the formal complaint, does not constitute election of the EEO process.

The record does not contain a copy of the November 6, 2008 grievance

identified by the agency in its final decision, which was purportedly

filed before complainant's April 7, 2009 formal EEO complaint. Moreover,

the record does not contain a copy of a collective bargaining agreement

or any other documentation that reflects that the negotiated grievance

procedure permits claims of discrimination. Clearly, it is the burden

of the agency to provide the evidence or proof to substantiate its

final decision. See Marshall v. Department of the Navy, EEOC Request

No. 05910685 (September 6, 1991).

Accordingly, the agency's final decision dismissing complainant's

complaint on both grounds is REVERSED and the complaint is REMANDED to

the agency for further processing in accordance with the ORDER below.

ORDER (E0408)

The agency is ordered to process the remanded claims in accordance with 29

C.F.R. � 1614.108 et seq. 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 (K1208)

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 77960, Washington,

DC 20013. 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 (M1208)

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 77960,

Washington, DC 20013. 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 (R0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with the Court 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

November 13, 2009

__________________

Date

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0120093048

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120093048

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