01A22271_r
08-20-2002
Joseph S. Bonsuk, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Joseph S. Bonsuk v. Department of Justice
01A22271
August 20, 2002
.
Joseph S. Bonsuk,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A22271
Agency No. F-01-5603
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated February 11, 2002, 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. In his
complaint, complainant alleged that he was subjected to discrimination
on the basis of sex (male) when:
On or about April 5, 2001, complainant's promotion to the GS-13 grade
level was denied by the Administrative Services Division (ASD) even
though the promotion was previously approved by the Information Resources
Division (IRD) management.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor
contact. The agency stated that although the alleged discriminatory
incident occurred on April 5, 2001, complainant failed to contact
an EEO Counselor until June 8, 2001, which was beyond the applicable
limitations period.
On appeal, complainant claims that the agency should be equitably
estopped from finding his contact untimely because he relied on a
request from the agency's management official that he �hold off� on
filing a complaint. Complainant explains that in September 2000,
his request for a promotion was denied. Complainant states that he
contacted his Ombudsman's Office and was told that the promotion was
denied because of a hiring freeze on all career ladder promotions for
Management Analysts performing human resources work. Complainant states
that in Spring 2001, he learned that several career ladder promotions
had been approved for female Management Analysts and thereafter his
paperwork was submitted a second time for promotion to the GS-13 level.
When his promotion was denied, complainant states that he was informed
that the reason for the denial was a hiring freeze on all promotions
for employees in the 343 series performing human resources functions.
Complainant states that upon learning his promotion was denied a second
time, he contacted his Ombudsman (Person A). Complainant states that
during his conversation with Person A, he informed her that he was
considering filing an EEO complaint. Complainant states that Person A
spoke to Person B, Person C (Deputy Assistant Director), and Person D
(Assistant Director) concerning his claim and then told complainant
he should �hold off� on filing an EEO complaint because management
had informed her that it wanted to resolve this situation internally.
Complainant states that on June 7, 2001, he contacted Person A to inquire
about the status of his claim and again indicated that he wanted to file
an EEO complaint. Complainant claims that he was told to wait because
management needed �another week to finish writing the policy� effecting
the freeze on promotions. Complainant states that as a result of this
conversation he realized that management was attempting to stall the
process or put into place a policy which would retroactively nullify his
EEO complaint. Complainant states after this conversation, he contacted
the EEO Counselor on June 8, 2001. Additionally, complainant states
that he initiated counselor contact in a timely fashion with regard
to two additional claims that he was subjected to discrimination and
retaliation when the agency (1) rescinded the policy freezing career
ladder promotions so that several similarly situated female employees
could be promoted and did not promote complainant during this time frame;
and (2) targeted his position for a desk audit.<1>
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.
The Commission has previously held that an agency may not dismiss a
complaint based on an complainant's untimeliness, if that untimeliness
is caused by the agency's action in misleading or misinforming the
complainant. See Wilkinson v. United States Postal Service, EEOC Request
No. 05950205 (March 26, 1996). See also Elijah v. Department of the
Army, EEOC Request No. 05950632 (March 29, 1996) (if agency officials
misled complainant into waiting to initiate EEO counseling, agency must
extend time limit for contacting EEO Counselor).
Complainant contends on appeal, without contradiction, that management
urged him not to do anything regarding his claim. Agency officials
cannot advise against EEO contact, and then dismiss a complaint
for untimeliness. See Battey v. Small Business Administration, EEOC
Appeal No. 01993312 (November 4, 1999) (dismissal inappropriate where
supervisor urged aggrieved not to talk with EEO Counselor and to "be
patient" for internal resolution); Hood v. Department of Transportation,
EEOC Appeal No. 01982504 (June 9, 1999) (dismissal inappropriate where
internal investigator instructed aggrieved not to discuss incident with
anyone until internal review completed). Thus, in the present case,
we find that the agency improperly dismissed complainant's complaint
for untimely EEO Counselor contact.
Accordingly, the agency's dismissal is REVERSED, and the claim is REMANDED
for further investigation.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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 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 (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
August 20, 2002
__________________
Date
1If complainant wants to pursue these issues,
he should raise them during the processing of the complaint.