01a01685
05-31-2000
Silverio Rubio, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Silverio Rubio v. United States Postal Service
01A01685
May 31, 2000
Silverio Rubio, )
Complainant, )
)
v. ) Appeal No. 01A01685
) Agency No. 4-C-150-0102-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On December 15, 1999, complainant filed a timely appeal with this
Commission from an agency's decision 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq.<1> The Commission accepts the appeal in accordance with 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. �1614.405).
On July 27, 1999, complainant contacted the EEO office regarding claims
of discrimination based on national origin, age, and retaliation.
Informal efforts to resolve complainant's concerns were unsuccessful.
Subsequently, on September 2, 1999, complainant filed a formal complaint.
The agency framed the claims as follows:
1) On January 14, 1999, complainant was removed from his position;
2) on March 31, 1999, complainant requested an Officer in Charge (OIC)
assignment and was not selected; and,
3) On unspecified dates, complainant requested OIC assignment to Wheeling,
WV; Latrobe; Natrona Heights; Oakmont; Warrendale; Midland; Wildowood;
Brownsville; Bentleyville; etc.
On December 1, 1999, the agency issued a decision dismissing the
complaint for untimely EEO Counselor contact and failure to cooperate.
Specifically, the agency determined that claims 1 and 2 occurred on
January 14, 1999 and March 31, 1999, respectively. Complainant however,
did not contact the EEO office until July 27, 1999, well beyond the
forty-five day time limitation. With respect to claim 3, the agency
concluded that complainant's response to their request for additional
information was inadequate. According to the agency, they asked
complainant to provide specific dates for the denied OIC assignments.
Complainant merely stated that the denials were "ongoing."
On appeal, complainant argues that his complaint concerns a continuing
violation. He also provides several dates regarding when he became aware
that other, less qualified, individuals were selected for particular
OIC assignments.
Claims 1 and 2
Volume 64 Fed. Reg. 37,644, 37656 (1999) (to be codified and hereinafter
referred to as 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 instant case, we find that complainant contacted the EEO office on
July 27, 1999 , and claims 1 and 2 occurred in January and March 1999.
Therefore, complainant's contact was months after the forty-five day
time limitation had expired. Complainant argues on appeal that the
alleged events are part of a continuing violation. The continuing
violation doctrine can be invoked to suspend the normal time limit for
contacting an EEO Counselor. See Rowan v. Department of Transportation,
EEOC Request No. 05940661 (February 24, 1995).
Regarding claims 1 and 2, neither claim purportedly occurred within
45 days of complainant's initial EEO Counselor contact. Therefore,
these claims cannot be construed as part of a continuing violation.
Moreover, we find that complainant has not presented sufficient reason to
waive the EEO Counselor timeliness requirement on other grounds. Here,
we find that removal from his position (claim 1) and non-selection for
an assignment (claim 2) are discrete events that should have triggered
complainant's suspicions. Therefore, complainant should have reasonably
suspected discrimination more than forty-five days before his July 27,
1999 contact. The agency's decision to dismiss claims 1 and 2 was proper
and is AFFIRMED.
Claim 3
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(7)) requires an agency to dismiss
a complaint or a portion of a complaint for failure to cooperate, or
alternatively, to adjudicate the complaint if sufficient information
for that purpose is available. The regulation is in applicable under
the following circumstance: (1) the agency has provided the complainant
with a written request to provide relevant information or to otherwise
proceed with the complaint; (2) the request included a notice of the
proposed dismissal for failure to respond within 15 days of receipt of
the request; and (3) the complainant either fails to respond to the
request within 15 days of receipt or the complainant's response does
not address the agency's request. The Commission has held that the
regulation is applicable, however, only in cases where there is a clear
record of delay or contumacious conduct by the complainant. See Anderson
v. U.S. Postal Service, EEOC Request No. 05940850 (February 24, 1995).
In the instant case, we find that the agency reasonably requested dates
for the alleged OIC assignment non-selections and January 1999 removal.
While the agency may have determined that complainant did not provide a
specific answer, complainant nevertheless attempted to respond to the
agency's request. Complainant indicated that the OIC non-selections
were on-going<2> and that the removal occurred on January 14, 1999.
The agency does not contend that complainant's response was untimely.
Moreover, the Commission finds that complainant's response is not
reflective of delay or contumacious conduct. Therefore, we find that
the agency improperly dismissed claim 3 for failure to cooperate.
Accordingly, the agency's decision to dismiss claim 3 for failure to
cooperate is REVERSED and REMANDED to the agency for further processing.
Accordingly, the agency's decision to dismiss claim 1 and 2 was proper
and is hereby AFFIRMED. The agency's decision to dismiss claim 3 was
improper, and is REVERSED. Claim 3 is REMANDED to the agency for further
processing in accordance with this decision and the Order below.
ORDER (E0400)
The agency is ORDERED to process the remanded claim (claim 3) 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 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 (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 (T0400)
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:
May 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.
2We note that on appeal, complainant presents several dates regarding
OIC assignment, occurring between March 10, 1999 and January 10, 2000.