0120091934
07-24-2009
Lawrence G. Nuorala, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.
Lawrence G. Nuorala,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120091934
Agency No. 200922351FAA05
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 5, 2009, dismissing his 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. In his complaint, complainant alleged that he
was subjected to discrimination on the bases of age (45) and in reprisal
for prior protected EEO activity under Title VII when on February 20,
2008, he was not selected for the position of Operations Supervisor,
advertised under Vacancy Announcement No. ASW-ATO-08-176-102039M.
The agency dismissed complainant's claim of discrimination on the bases of
age and reprisal, pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO Counselor contact. The agency stated that it selected another
individual for the position on February 20, 2008. However, complainant
did not initiate EEO Counselor contact until October 14, 2008, which
the agency noted was well after the expiration of the forty-five-day
limitation. The agency's final decision found that complainant failed
to use due diligence to make inquiries regarding his application status,
and as a result, his EEO Counselor contact was untimely.
On appeal, complainant argued that he repeatedly attempted to contact
agency officials regarding the status of his application, but was never
made aware of his non-selection until September 3, 2008, which was 7
to 8 months after a selectee was chosen for the position. Complainant
alleged that he never received notification of the non-selection.
Complainant further argued that he was within the forty-five (45) day
time-frame because he contacted an EEO Counselor 41 days from when he
knew about the non-selection.
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. McLoughlin v. Department of the Treasury, EEOC Request
No. 05A01093 (April 24, 2003).
EEOC Regulation 29 C.F.R. � 1614.105(a)(2) provides 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.
In the instant case, we find that the agency has not produced sufficient
evidence to establish that complainant knew or should have known of
his non-selection prior to September 3, 2008. The record contains
no evidence that complainant was notified of his non-selection.
Although the agency asserts that a notification letter was mailed
to complainant and all other non-selectees, the agency was not able
to provide a copy of the letter or a record of the letter's dispatch.
Further, the record supports complainant's assertion that he did exercise
due diligence by attempting to contact agency officials on numerous
occasions to find out the status of his application. The Commission has
held that "[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).
Accordingly, since the record contains no evidence reflecting that
complainant was aware or should have been aware of his non-selection
prior to September 3, 2008, we find that complainant's contact with an
EEO Counselor on October 14, 2008 was timely. Therefore, the agency's
dismissal of the complaint is REVERSED and the complaint is REMANDED to
the agency for further processing in accordance with this decision and
the Order below.
ORDER (E0408)
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 (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
July 24, 2009
Date
2
0120091934
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
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6
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