01a00339
03-31-2000
Ralph Arellanes, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Ralph Arellanes, )
Complainant, )
)
v. ) Appeal No. 01A00339
) Agency No. KV1M99111
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
____________________________________)
DECISION
On October 14, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) received by him on
September 25, 1999, 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.<1> Pursuant to 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified at 29 C.F.R. � 1614.405), the Commission
accepts the complainant's appeal from the agency's final decision in
the above-entitled matter.
ISSUE PRESENTED
The issues presented herein are whether the agency properly dismissed
the present complaint for untimely EEO Counselor contact and for failure
to state a claim.
BACKGROUND
The record reflects, that for the relevant period of time, complainant was
employed by the Department of the Air Force, as a program analyst, GS-12.
On May 18, 1999, complainant initiated contact with an EEO Counselor.
During the counseling period, complainant stated:
He received notice on March 12, 1999 that he would be reassigned
effective April 11, 1999, because of a RIF affecting his position;
He was not given credit as a GS-13 for performing the duties of his
position and that of his supervisor from July 1998 to April 1999; and
His position description submitted by his supervisor in February 1998
was not forwarded to the Civilian Personnel for review.
Counseling failed, and on August 23, 1999, complainant filed a formal
complaint claiming that he was the victim of unlawful employment
discrimination on the basis of his national origin (Hispanic). The formal
complaint was comprised of the matters for which complainant underwent
EEO counseling, discussed above.
On September 23, 1999, the agency issued a final decision dismissing the
present complaint for failure to state a claim and for untimely counselor
contact. With regards to issue one, the agency found that the alleged
discriminatory event occurred on March 12, 1999, and that complainant's
initial EEO Counselor contact on May 18, 1999, was more that forty-five
days after the matter raised in the allegation purportedly occurred.
Furthermore, the agency dismissed claim one for failure to state a claim.
Next, the agency dismissed claim three for failure to initiate timely
contact with an EEO Counselor. It should be noted, that the decision
is silent with respect to claim two.
ANALYSIS AND FINDINGS
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 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.
In the present case, complainant received notice that he would be
reassigned due to an RIF on March 12, 1999. Because no RIF actually
occurred, the Commission finds that complainant should have had
a �reasonable suspicion� that he may be the victim of unlawful
discrimination on or about March 12, 1999. Therefore, complainant
should have initiated contact with an EEO Counselor by April 27, 1999.
Consequently, complainant's initial EEO Counselor contact on May 18, 1999
is untimely. Furthermore, complainant has failed to present adequate
justification pursuant to 29 C.F.R. � 1614.105(a)(2), for extending
the limitations period beyond forty-five days. Accordingly, the agency
properly dismissed this claim for untimely EEO Counselor contact.<2>
Next, the agency also dismissed claim three on the ground of untimely
EEO Counselor contact. As stated above, 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).
Furthermore, 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 also Gens v. Department of Defense, EEOC Request
No. 05910837 (January 31, 1992). Here, the agency dismissed claim three
for untimely EEO Counselor contact, although the agency fails to address
when complaint became aware of the fact that his position description
was not forwarded to Civilian Personnel. Without this information,
the agency cannot establish when the limitations period began to toll.
Therefore, the agency has failed to substantiate the bases for its
final decision dismissing claim three. See Marshall v. Department of
the Navy, EEOC Request No. 05910685 (September 6, 1991). Accordingly,
the Commission finds that claim three was improperly dismissed.
As a final matter, the agency, in its decision, failed to address claim
two. In this situation, the Commission has consistently held that the
agency's failure to address a claim is tantamount to a dismissal of that
matter. Accordingly, the agency's dismissal of claim two is REVERSED,
and that claim is also REMANDED to the agency for further processing.
CONCLUSION
For the reasons set forth herein, the Commission REVERSES the agency
decision dismissing claims two and three. These claims are REMANDED
to the agency for further processing in accordance with this decision
and applicable regulations set forth below. The Commission AFFIRMS the
remainder of the agency's decision.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 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 an
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 (K1199)
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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified
and hereinafter referred to as 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 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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
(R1199)
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:
March 31, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date 1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at WWW.EEOC.GOV.
2Since the Commission affirmed the agency's dismissal of claim one for
untimely EEO Counselor contact, the Commission will not consider the
agency's alternative ground for dismissal failure to state a claim.