01993866
02-09-2001
Paul Lawson, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Paul Lawson v. Department of Justice
01993866
February 9, 2001
.
Paul Lawson,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01993866
Agency No. I-98-C068
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated March 15, 1999, 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. In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of race (African-American), sex (male), and in reprisal
for prior EEO activity when:
Complainant was not selected for the position of Detention Enforcement
Officer (DEO) GS-5, certificate number DA-DE-07-13.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor
contact. Specifically, the agency stated that complainant became aware
in March 1997 of the non-selection, however, he did not contact an EEO
Counselor until October 9, 1997, beyond the applicable forty-five (45)
day limitation period.
On appeal, complainant, through his attorney, argues that the forty-five
(45) day time limit should be waived based on the fact that the EEO office
failed to follow the correct procedures in assigning him an EEO Counselor.
Specifically, complainant states that he timely contacted the EEO office
for assistance with his discrimination complaint, however, the EEO office
failed to promptly provide him with requested information, including the
identity of the EEO Counselors. Complainant refers to a November 13,
1997 letter from the EEO office wherein an agency official acknowledges
that complainant contacted an EEO Counselor who failed to provide him
appropriate counseling. The letter states that the individual contacted
by complainant stated that he could not take complainant's case because
of a previous commitment; however, the official did not notify the EEO
office nor did he properly counsel complainant.
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.
Upon review of the record, we are unable to determine whether the agency
properly dismissed complainant's complaint for untimely EEO Counselor
contact. Specifically, we note that the record does not contain evidence
identifying the date complainant first learned of his non-selection
for the position of Detention Enforcement Officer, GS-5. In addition,
complainant does not state when he first suspected discrimination played a
role in his non-selection. Furthermore, we note that it is unclear from
the record when complainant first contacted the EEO Office for a list
of available counselors. Thus, based on the above uncertainties, the
Commission is unable to render a decision with regard to the timeliness
of complainant's EEO Counselor contact. We note, however, that despite
the November 13, 1997 letter, the agency has not waived its right to
dismiss complainant's complaint for untimely counselor contact.
Accordingly, the agency's decision to dismiss complainant's complaint
is VACATED and the complaint is REMANDED for further processing in
accordance with the Order below.
ORDER
The agency is ORDERED to conduct a supplemental investigation to
obtain documentary evidence, or evidence in the form of affirmations or
affidavits, including a statement from complainant if needed, regarding:
the date the agency notified complainant of his non-selection for the
position of Detention Enforcement Officer GS-5, certificate number
DA-DE-07-14;
the date complainant first suspected discrimination played a role in
his non-selection;
the date complainant first contacted the EEO Office for a list of
counselors.
Thereafter, the agency shall issue a new final decision or notify
complainant that it is processing the complaint. The supplemental
investigation and issuance of the final decision or notice of processing
must be completed within thirty (30) calendar days of the date that this
decision becomes final.
A copy of the agency's new final decision or notice of processing 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
February 9, 2001
__________________
Date