01991888
08-28-2000
Salvatore J. DeNucci, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Salvatore J. DeNucci v. Department of the Interior
01991888
08-28-00
.
Salvatore J. DeNucci,
Complainant,
v.
Bruce Babbitt,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01991888
Agency No. FNP-99-008
DECISION
INTRODUCTION
Complainant filed an appeal with this Commission from a final agency
decision concerning his complaint of unlawful employment discrimination in
violation of the Age Discrimination in Employment Act of 1967, as amended,
29 U.S.C. � 621 et seq.<1> The final agency decision was dated December
29, 1998, and received by complainant on January 2, 1999. The appeal
was postmarked on January 5, 1999. Accordingly, the appeal is timely
(see 29 C.F.R. � 1614.402(a)), and is accepted in accordance with 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed complainant's
complaint for untimely contact with an EEO Counselor.
BACKGROUND
Complainant filed a formal complaint on October 22, 1998, alleging
discrimination on the basis of age (58 at the time of the event) when he
was terminated from the agency (National Park Service) effective July
5, 1996. He first contacted an EEO Counselor regarding the matter on
September 16, 1998.
In its final agency decision (FAD), the agency dismissed the complaint for
untimely contact with an EEO Counselor. It stated that the complainant
was aware or should have been aware of the time limits for contacting an
EEO Counselor because the site at which complainant worked had information
posted on the bulletin board regarding the procedures for processing
complaints of discrimination. It claimed that the information included
the EEO Counselor's pictures with their names and telephone numbers.
This appeal followed. In his appeal, complainant claimed that he
was never instructed regarding EEO procedures, and did not see any EEO
Counselor contact posters in the building in which he worked. He stated
that the National Historic Site at which he worked had several buildings
and that he was only allowed in the ones relevant to his position.
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 Regulation 29 C.F.R. �1614.105(a)(2) provides that the agency or
the Commission shall extend the 45 day time limit when the complainant
shows 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.
It is the Commission's policy that constructive knowledge of the rights
and obligations under Title VII will be imputed to a complainant
where the agency has fulfilled its statutory duty of conspicuously
posting EEO posters informing employees of their rights. See Piccone
v. U.S. Postal Service, EEOC Request No. 05950678 (April 11, 1996) citing
Brown v. Department of Commerce, EEOC Request No. 05890978 (January
10, 1990). However, the agency has the burden of producing sufficient
evidence to support its contention that it fulfilled its statutory duty
of conspicuously posting EEO information or that it otherwise notified
the complainant of his or her rights. In addition, the Commission has
found that constructive knowledge will not be imputed to a complainant
without specific evidence that the posters contained notice of the
time limitation for contacting an EEO Counselor. Piccone citing Pride
v. U.S. Postal Service, EEOC Request No. 05930134 (August 19, 1993).
In this case, the agency has failed to produce any evidence showing that
complainant had actual or constructive notice of the time limit for
contacting an EEO Counselor. It does not provide any evidence in the
record that EEO posters were on display in complainant's work facility,
either in the form of a copy of any EEO posters or an affidavit describing
the location of the posters during the relevant time period. Nor does
it provide persuasive evidence that complainant was otherwise notified
of the procedures for filing an EEO complaint at any time during his
employment with the agency. The only relevant information in the record
was contained in the Counselor's Report, which stated that posters were
�located in the locomotive shop and in the interpretive lunch room.� This
information alone, however, is inadequate to satisfy the agency's burden
of showing that the complainant was on actual or constructive notice.
Therefore, the Commission cannot find that the complainant had actual or
constructive notice of the time limits for contacting an EEO Counselor.
The Commission shall remand the claim to the agency so that it may conduct
a supplemental investigation to determine if complainant had actual or
constructive notice of the time limit for contacting the EEO Counselor.
CONCLUSION
Accordingly, the decision of the agency is VACATED, and is REMANDED to
the agency to conduct a supplemental investigation in accordance with
this decision and the applicable regulations.
ORDER
The agency shall investigate the issue of whether complainant had
actual or constructive knowledge of the time limit for contacting an
EEO Counselor. The agency shall supplement the record with copies of
the EEO posters, or affidavits describing the posters if the posters
are unavailable, and any other evidence showing that complainant was
informed, or should have known, of the time limits for contacting an
EEO Counselor.
The agency shall redetermine whether complainant timely contacted an
EEO Counselor. Within 60 days of the date this decision becomes final,
the agency shall either issue a letter to complainant accepting the
claim for investigation, or issue a new decision dismissing the claim,
with all relevant information concerning appeal rights. A copy of the
letter accepting the claim or new decision dismissing the claim shall
be sent to the Compliance Officer as referenced herein.
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION
(R0400)
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
__08-28-00________________
Date
1 On 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.