01A33899_r
12-08-2003
Samuel Johnson, Jr., Complainant, v. Mel R. Martinez, Secretary, Department of Housing and Urban Development, Agency.
Samuel Johnson, Jr. v. Department of Housing and Urban Development
01A33899
December 8, 2003
.
Samuel Johnson, Jr.,
Complainant,
v.
Mel R. Martinez,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 01A33899
Agency No. FW-03-07
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated May 20, 2003, dismissing his complaint of
unlawful employment discrimination brought pursuant to Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.
The record reflects complainant applied for an Equal Employment
Opportunity Specialist position under three announcements: vacancy numbers
06-MSR-2002-0050z and 06-DEU-2002-00292, as well as under a Schedule
A excepted service announcement, as an individual with disabilities.
By letters dated July 30, 2002, the agency informed complainant that his
score was not high enough for referral to a selection official vacancy
numbers 06-MSR-2002-0050z and 06-DEU-2002-00292. Additionally, in e-mail
correspondence dated August 15, 2002, a personnel official (PO) informed
complainant that he was not eligible for consideration under the Schedule
A appointment because of an incomplete application, providing him with
information in this regard, and noting that she had previously informed
him about the status of this application on August 13, 2002 (herein
referred to as �e-mail 1'). Another e-mail communication from PO to
complainant, later in the day on August 15, 2002, notified him that on
August 12, 2002, his name was added to a Supplemental Certificate under
announcement number 06-DEU-2002-00292 (herein referred to as �e-mail 2').
On October 3, 2002, complainant contacted an EEO Counselor, asserting
that he applied for an Equal Employment Opportunity Specialist position
under three announcements: vacancy numbers 06-MSR-2002-0050z and
06-DEU-2002-00292, as well as under a Schedule A excepted service
announcement, as an individual with disabilities.
The EEO Counselor's report reflects that complainant stated that
he did not initiate the EEO process sooner because he was waiting to
receive formal notification from the agency regarding the status of his
applications. In an October 28, 2002 memorandum of Final Interview,
in pertinent part, the EEO Counselor advised complainant that during
the counseling process, PO indicated that although complainant's
name was included on a supplemental certificate under vacancy number
06-DEU-2002-00292, and he made the Best Qualified List, he was not
selected for the position.
On November 1, 2002, complainant filed a formal complaint, claiming
discrimination on the basis of disability. A fair reading of the
record reflects that the instant complaint is comprised of the following
three claims:
1. Complainant's non-selection under vacancy announcement
06-MSR-2002-0050z;
2. Complainant's non-selection under Schedule A for the positions at
issue; and
3. Complainant's non-selection under vacancy announcement 06-DEU-2002-
00292.
In its final decision, dated May 20, 2003, the agency dismissed
the complaint on the grounds of untimely EEO Counselor contact.
Specifically, the agency determined that complainant suspected
discrimination as of July 30, 2002, the date of the two letters informing
him that his application would not be referred to the selecting official
under vacancy announcements 06-MSR-2002-0050z, and 06-DEU-2002-00292,
respectively. Based on this date, the agency concluded that complainant's
initial EEO contact on October 3, 2002, was beyond the 45-day time limit.
The agency further determined that complainant was aware of the time
limit due to his prior EEO activity, and also found that complainant's
reason for his delay in initiating the EEO process, i.e., that he waited
to see who the agency selected for the position, was not sufficient to
warrant an extension of the time limit.
On appeal, complainant submits a copy of a May 29, 2003 letter he sent
to the agency, claiming that the agency's final decision contained
factual errors. In particular, complainant contends that the agency
failed to recognize that he made three applications for the position at
issue, but received official notification of non-selection only under
vacancy number 06-MSR-2002-0050z , and an unofficial e-mail notification
concerning his Schedule A application. Furthermore, complainant asserts
that while he also received a notice of non-selection for vacancy
number 06-DEU-2002-00292, he then subsequently received �e-mail 2'
indicating that his name was added to a supplemental certificate for
this vacancy announcement. Complainant further avers that since the
inclusion of his name on the supplemental certificate, he has received
no notification regarding the status of his application, such that his
EEO Counselor contact should be deemed timely regarding his apparent
non-selection for this position.
In response to complainant's appeal, the agency argues that on July
30, 2002, complainant received written notification from the agency
rejecting his applications under both vacancy numbers 06-MSR-2002-0050z
and 06-DEU-2002-00292, so that his EEO Counselor contact is clearly
untimely. Moreover, the agency avers that even using August 15, 2002,
the date of �e-mail 1', which informed complainant that his Schedule A
application would not be considered, complainant's initial EEO Counselor
contact on October 3, 2002, was still beyond the 45-day time period.
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.
Claims (1) and (2)
Regarding claim 1 (vacancy number 06-MSR-2002-0050z), we agree with the
agency that complainant should have reasonably suspected discrimination
upon receipt of the July 30, 2002 notification of his non-selection
for this position, such that his October 3, 2002 EEO Counselor contact
is untimely. Additionally, regarding claim 2 ( Schedule A application),
we again concur with the agency that complainant should have reasonably
suspected discrimination upon receiving �e-mail 1' on August 15,
2002, which informed him that his Schedule A application would not be
considered because it was incomplete, thereby rendering his October 3,
2002 EEO Counselor contact untimely. Furthermore, we also agree with
the agency that complainant fails to submit adequate justification to
waive this time limit as to claims 1 and 2. Accordingly, we AFFIRM the
agency's dismissal of claims 1 and 2, as framed herein.
Claim (3)
Regarding claim 3, (vacancy number 06-DEU-2002-00292), we find that
the agency informed complainant of his non-selection on July 30,
2002; however, the record indicates that following this determination,
complainant's name was subsequently added to a supplemental certificate on
August 12, 2002, as confirmed by �e-mail 2.'.<1> Additionally, we find
that with the exception of the EEO Counselor's report and the memorandum
of final interview, wherein it states that PO told the EEO Counselor
that complainant made the Best Qualified List, but was not selected for
vacancy number 06-DEU-2002-00292, there is no indication that complainant
was otherwise informed of his apparent non-selection for this position.
Therefore, we find that complainant first learned of his non-selection
under vacancy number 06-DEU-2002-00292 upon receipt of the memorandum
of final interview, during the EEO counseling process, such that his
EEO Counselor contact regarding this claim must be considered timely.
Accordingly, we find that the agency improperly dismissed claim 3,
and we REVERSE this determination, and REMAND claim 3 to the agency for
further processing.
In conclusion, we AFFIRM the agency's dismissal of claims 1 and 2,
as framed herein, but we REVERSE the agency's dismissal of claim 3, as
framed herein. We REMAND claim 3 to the agency for further processing
as set forth in the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claim (claim (3)) in
accordance with 29 C.F.R. � 1614.108. The agency shall acknowledge to
the complainant that it has received the remanded claim 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 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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court within ninety (90) calendar
days from the date that you receive this decision on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, 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
December 8, 2003
__________________
Date
1According to the record, a supplemental
certificate was created because the agency's Headquarter's office
requested that additional candidates be submitted for consideration for
the position.