01984442_r
06-29-1999
John Nelson, Appellant, v. Rodney E. Slater, Department of Transportation, Agency.
John Nelson, )
Appellant, )
)
v. ) Appeal No. 01984442
Rodney E. Slater, ) Agency No. DOT5985087 Secretary, )
Department of Transportation, )
Agency. )
______________________________)
DECISION
On May 12, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD), dated April 17, 1998, 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.
The Commission accepts appellant's appeal in accordance with EEOC Order
No. 960, as amended.
In his complaint, appellant alleged that he was subjected to
discrimination on the basis of national origin (Native American) when
he was not selected for two Air Traffic Control Specialist positions at
the Albuquerque Tower.
The agency dismissed appellant's complaint for untimely EEO counselor
contact. Specifically, appellant sought counseling on March 20, 1998,
for an alleged discriminatory action which occurred in December 1997.
On appeal, appellant contends, as a non-FAA employee, that he is not
familiar with the EEO complaint process. Appellant further claims that
because he totally relied upon the Internet for the complaint process,
he was unable to get clarity as to when and how to file a complaint.
Appellant offers, as exhibits, FAA Internet web pages as proof of
conflicting, unclear information regarding the EEO complaint procedure.
Furthermore, appellant contends that he was never notified of the
selection decisions for the positions in question.
The Counselor's Report indicates that there were three vacancy
announcements under which appellant applied with closing dates of April
1, 1997, August 19, 1997, and January 6, 1998. There is no evidence of
record regarding when appellant was informed of his nonselections.
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 Ball v. USPS, EEOC Request
No. 05880247 (July 6, 1988). 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 she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
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 Gens
v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992).
It is the Commission's policy that constructive knowledge will be
imputed to an employee when an employer has fulfilled its obligation of
informing employees of their rights and obligations under Title VII.
Thompson v. Department of the Army, EEOC Request 05910474 (September
12, 1991). However, we have held that a generalized affirmation that an
agency posted EEO information, without specific evidence that the poster
contained notice of the time limits, is insufficient for constructive
knowledge of the time limits for EEO Counselor contact. Pride v. USPS,
EEOC Request No. 05930134 (August 19, 1993). The record contains no
evidence that posters were on display at the agency work site or that
appellant was otherwise informed of the applicable time limit for seeking
EEO contact. Consequently, we find that this matter must be remanded
to the agency for a supplemental investigation regarding whether and
when appellant was informed of the applicable time limits.
Furthermore, we note that it is unclear from the present record when
appellant became aware of the alleged discrimination. There is no
evidence of record regarding when appellant was notified of the selection
decision at issue. Therefore, on remand, the agency shall supplement
the record with evidence regarding the date of appellant's awareness.
CONCLUSION
The agency's final decision is hereby VACATED. This matter is hereby
REMANDED to the agency to conduct a supplemental investigation in
accordance with the Order below.
ORDER
The agency is ORDERED to take the following actions:
within fifteen (15) calendar days of the date this decision becomes final,
the agency shall contact appellant requesting the date(s) on which he
became aware of the alleged discrimination regarding his nonselection
for the positions at issue. Appellant shall have fifteen (15) calendar
days from his receipt of the agency's request within which to respond.
Appellant shall provide the dates, as well as specify the manner in
which he first suspected the alleged discrimination;
the agency shall supplement the record with evidence regarding whether
EEO information was on display where appellant would or should have seen
the information, or in some other manner provided EEO information to
appellant, that specifically referred to the time limit for contacting
an EEO Counselor. The agency shall gather any other evidence necessary
to determine when appellant learned of the time limit for contacting an
EEO Counselor.
Within thirty (30) days of the date this decision becomes final, the
agency shall issue a new final agency decision accepting or dismissing
the complaint after it determines when appellant first suspected the
alleged discrimination and whether appellant had actual or constructive
notice of the time limit for contacting an EEO Counselor or acted in a
timely manner once he obtained actual or constructive knowledge.
A copy of the notice to appellant requesting information, and a copy
of the new final agency decision and/or notice of processing on the
complaint 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(c) (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:
June 29, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations