01a33199
01-21-2005
Robert Ramirez, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Robert Ramirez v. Department of the Treasury
01A33199
JANUARY 21, 2005
.
Robert Ramirez,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A33199
Agency No. TD-01-4082
Hearing No. 340-A2-30442X
DECISION
Complainant filed a timely appeal with this Commission from an EEOC
Administrative Judge's (AJ) decision dated April 8, 2003, 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 formal complaint filed on December 15, 2000, complainant alleged
that he was subjected to discrimination on the bases of national origin,
sex, age, and in reprisal for prior EEO activity.
By letter dated February 20, 2001, the agency accepted the following
claim for investigation:
Was complainant discriminated against on the bases of age (Date of
Birth: September 1, 1946), national origin (Hispanic), sex (male),
and/or in retaliation for his prior EEO activity when the agency failed
to select him for the position of Branch Chief, GS-1890-13, under Vacancy
Announcement SOCAL/99-012, on or about April 27, 2000?
Subsequently, complainant requested a hearing before an AJ. On April
8, 2003, the AJ dismissed complainant's complaint for untimely EEO
Counselor contact. Specifically, the AJ stated that he adopted the
material facts and applicable legal standards set forth in the agency's
response to his Order to Show Cause dated February 27, 2003. The agency
took no action within forty (40) days of receipt of the AJ's decision,
and thereby adopted the AJ's decision as its final agency action.
29 C.F.R. � 1614.109(i).
The record contains a copy of the agency's response to the AJ's Order to
Show Cause. Therein, the agency states that while complainant asserts
that he received an anonymous phone call in June 2000, informing him
that he was not selected for the position in question, this assertion
is not credible. The agency states that if complainant received an
anonymous call, he more likely received the phone call immediately after
the announcement of the selections on May 3, 2000, instead of receiving
the phone call in June 2000.
On appeal, complainant states that his complaint was improperly dismissed.
Specifically, complainant states that on June 23, 2000, he received
an anonymous phone call regarding the selections for the position in
question and that he immediately contacted an EEO officer on that date.
Complainant further asserts that June 23, 2000, was �the first and only
time [he] was made aware of the selections.�
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.
The Commission determines that complainant reasonably suspected
discrimination when he allegedly received an anonymous phone call in
June 2000, regarding the selections for the position in question. The
record reflects that complainant initiated EEO Counselor contact on June
23, 2000. The record contains a copy of an agency memorandum dated
May 3, 2000, to all employees from the Director, Field Operations.
Therein, the Director announced the selectees for the position in
question and stated that the effective date for the selections would be
May 7, 2000. Complainant in his formal complaint and on appeal states
that he was out of the office on sick leave from April 27, 2000 through
July 5, 2000. Therefore, complainant asserts that he was not at work
when the announcement regarding the selectees was made on May 3, 2000.
Furthermore, the agency, in its response to the AJ's Order to Show Cause,
acknowledges that complainant was on sick leave during this time frame.
Complainant further asserts in his formal complaint and on appeal that
he first became aware of the selections for the position in question
when he received an anonymous call in June 2000. While the agency
asserts that if complainant received an anonymous phone call regarding
his nonselection, he more likely received the phone call immediately
after the selection announcement in May 2000, rather than in June 2000,
we are unpersuaded by this argument. 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). Regarding the instant complaint, the
agency has not met this burden.
Accordingly, the agency's final action implementing the AJ's dismissal
of complainant's complaint is REVERSED and the matter is REMANDED for
a hearing before an AJ in accordance with the ORDER below.
ORDER
The agency shall submit to the Hearings Unit of the appropriate EEOC
District Office a request for a hearing within fifteen (15) calendar
days of the date this decision becomes final. The agency is directed to
submit a copy of the complaint file to the Hearings Unit within fifteen
(15) calendar days of the date this decision becomes final. The agency
shall provide written notification to the Compliance Officer at the
address set forth below that the request and complaint file have been
transmitted to the Hearings Unit.
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 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)
(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 (M0701)
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
January 21, 2005
__________________
Date