John M. Gavin, Appellant,v.Janet Reno, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionOct 28, 1999
01986485 (E.E.O.C. Oct. 28, 1999)

01986485

10-28-1999

John M. Gavin, Appellant, v. Janet Reno, Attorney General, Department of Justice, Agency.


John M. Gavin v. Department of Justice

01986485

October 28, 1999

John M. Gavin, )

Appellant, )

)

v. ) Appeal No. 01986485

) Agency No. I-97-0204

Janet Reno, )

Attorney General, )

Department of Justice, )

Agency. )

_________________________________)

DECISION

Appellant filed the instant appeal from the agency's July 21, 1998

decision dismissing appellant's complaint for failure to timely contact

an EEO Counselor.

In the complaint, appellant alleged that he was discriminated against

on the basis of sex when he was denied a promotion to Special Agent.

The agency found that appellant was on notice that his promotion was

denied in October 1996, and that he initially contacted an EEO Counselor

on April 17, 1997.

EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved

person must contact an EEO Counselor within 45 days of the matter alleged

to be discriminatory. The 45 day time limit shall be extended when the

individual shows that he was not notified of the time limits and was

not otherwise aware of them or that he did not know and reasonably

should not have known that the discriminatory matter occurred.

29 C.F.R. �1614.105(a)(2).

Appellant argues that he did not reasonably suspect discrimination until

an event on March 7, 1997 (and events thereafter) suggested to him that

"at least some segment of my management chain of command was attempting

to give a false impression of my performance in order to justify previous

discriminatory promotion practices." Specifically, appellant argues

that on March 7, 1997, Acting Supervisor A told him that he was being

evaluated as average. Appellant argues that on March 10, 1997, Acting

Supervisor A stated that in order for appellant to get a promotion,

his performance should exceed those of other employees.

The agency states that appellant made a Freedom of Information Act (FOIA)

request in January 1997 regarding the names of persons who received

accelerated promotions. However, we do not find that a FOIA request

necessarily reflects that an individual suspected or reasonably should

have suspected discrimination at the time the FOIA request was made.

Appellant argues that the FOIA request was "made with the reasonable

expectation that management made decisions fairly and equally, and that,

if asked, information would be provided to clarify the situation."

Although appellant was obligated to contact an EEO Counselor within

45 days of when he should have reasonably suspected discrimination,

he was not obligated to assume that every action taken by the agency

that harmed him was motivated by discrimination. Appellant's actions

in pursuing the instant matter were reasonable and well explained by

appellant on appeal. The Commission finds that there is no persuasive

evidence in the record showing that appellant should have reasonably

suspected discrimination prior to March 7, 1997. Appellant's contact of

an EEO Counselor on April 17, 1997, was less than 45 days after March 7,

1997, and was therefore timely.

The agency's decision dismissing the complaint is REVERSED and we REMAND

the complaint to the agency for further processing in accordance with

this decision and applicable regulations.

ORDER (E1092)

The agency is ORDERED to process the remanded allegations in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received the remanded allegations within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue to

appellant a copy of the investigative file and also shall notify appellant

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 appellant requests a final decision

without a hearing, the agency shall issue a final decision within sixty

(60) days of receipt of appellant's request.

A copy of the agency's letter of acknowledgement to appellant 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 (K0595)

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 appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant 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. �� 1614.408 and 1614.409. 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� (Supp. V 1993).

If the appellant files a civil action, the administrative processing of

the complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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:

10/28/1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations