0120090333
02-24-2009
Paul M. Cook, Complainant, v. Elaine L. Chao, Secretary, Department of Labor, Agency.
Paul M. Cook,
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120090333
Agency No. 08-05-107
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated September 12, 2008, dismissing his formal complaint
of unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.
On July 3, 2008, complainant initiated EEO Counselor contact. Informal
efforts to resolve his concerns were unsuccessful.
On August 12, 2008, complainant filed the instant formal complaint.
Therein, complainant alleged that he was subjected to discrimination on
the basis of disability when:
in May 2007, he applied for the position of Mine Safety and Health
Specialist, GS-1822-09/11/12, advertised under Vacancy Announcement
No. MSHA-07-046-DEU, open between March 20, 2007 and April 13, 2007,
but was not selected.
Complainant further alleged that although he was interviewed in May 2007,
he was not notified of his non-selection until April 24, 2008.
The record reflects that complainant filed an appeal with Merit Systems
Protection Board concerning an October 3, 2005 resignation. The record
further reflects that although complainant filed his appeal over two
years after his resignation, the Administrative Judge (AJ) excused
the delay because complainant demonstrated good cause in that he was
unaware of his rights to appeal until he was advised by his congressman.
Once advised, complainant filed his appeal within thirty (30) days,
and the AJ waived the time limit.
In its September 12, 2008 final decision, the agency dismissed
complainant's formal complaint pursuant to 29 C.F.R. � 1614.107(a)(2)
on the grounds of untimely EEO Counselor contact. The agency determined
that complainant's initial EEO contact occurred on July 3, 2008, which
it found to be beyond the 45-day limitation period. The agency further
determined that complainant had or should have had reasonable suspicion
of unlawful employment discrimination prior to July 3, 2008.
On appeal, complainant argues that the requisite 45-day limitation
period should be waived. Specifically, complainant states that he
submitted a letter to his congressman "to help assist me in filing the
EEOC since it was official that the MSPB did not have jurisdiction with
my discrimination claim." Complainant further states "the EEOC wants
to hold me to a 45 day time line, but frankly did little to assist me
in complying with that time frame."
In response, the agency argues that complainant has not alleged that
he was unaware of the time frame for seeking counseling. The agency
argues that the record reflects that the Commission's Cleveland Field
Office responded to the congressman's inquiry concerning complainant's
rights on May 30, 2008. Therein, the Hearing Unit at the Cleveland Field
Office advised the Congressman that an aggrieved employee was required
to contact an EEO Counselor within forty-five (45) days of the alleged
discriminatory action. The agency further argues that there is no record
indicating when the Congressman passed on the information concerning
complainant's rights nor does complainant provide that information.
Furthermore, the agency states "without more, we can only assume that
it was within a few days, thus giving Complainant sufficient time to
contact an EEO Counselor. Nothing indicates that the forty-five (45)
day period should be extended."
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. Complainant states that he was unaware of
the time limit for initiating EEO Counselor contact until July 3, 2008.
The agency has placed no evidence in the record stating that EEO posters
showing the time limit were on display during the relevant time or provide
any agency official stating that the EEO poster was indeed posted at a
specified time, in a specified place, with the appropriate time limits.
There is also not sufficient evidence in the record showing complainant
had actual or constructive notice of the time limit for contacting an
EEO Counselor.
The Commission has held that where there is an issue of timeliness, the
agency always bears the burden of obtaining sufficient 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.
The agency's final decision dismissing the instant complaint is REVERSED.
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 (K0501)
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,
D.C. 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
February 24, 2009
__________________
Date
2
0120090333
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120090333
6
0120090333