0120110614
02-08-2012
Kevin M. Paschal, Complainant, v. Robert C. Tapella, Public Printer, United States Government Printing Office, Agency.
Kevin M. Paschal,
Complainant,
v.
Robert C. Tapella,
Public Printer,
United States Government Printing Office,
Agency.
Appeal No. 0120110614
Agency No. 1039
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's decision dated September 27, 2010, 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. Upon review, the Commission finds that Complainant's complaint
was improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2) for
untimely EEO counselor contact.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a PPW-1 at the Agency’s Press Division – Letter Press in Washington,
DC. On June 28, 2010, Complainant filed a formal complaint alleging
that the Agency subjected him to discrimination on the basis of race
(African-American) when, in April 2010, he became aware that he would
not receive a performance award for Fiscal Year 2009.
On September 27, 2010, the Agency issued a final decision dismissing
the complaint pursuant to 29 C.F.R. §1614.107(a)(2) for untimely EEO
Counselor contact. The Agency found that Complainant was not entitled
to the award because of the rating he received in his 2009 performance
evaluation, which he received on February 18, 2010. The Agency determined
that Complainant was aware of the performance evaluation on that date and
further, that he had constructive knowledge that he would not receive
an award on that date. Therefore, the Agency concluded his April 27,
2010 EEO Counselor contact was untimely because it occurred more than
45 days after February 18, 2010. From the final agency decision,
Complainant brings the instant appeal.
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.
The Agency contends that Complainant's Counselor contact was untimely
because he received his performance evaluation for 2009 on February 18,
2010, but did not contact a Counselor until April 27, 2010. We note,
however, that Complainant is not complaining about his 2009 evaluation,
he is complaining about not being given a performance award in 2010. In
his statement to the EEO counselor, Complainant states that he became
aware of the alleged discrimination “on or about April, 2010.” We
therefore find that his Counselor contact on April 27, 2010, was timely.
With regard to the Agency's argument that he did not receive the award
because of his 2009 performance evaluation, we note that such an argument
addresses the merits of the complaint without a proper investigation,
as required by the regulations. The fact, as asserted by the Agency, that
Complainant’s performance evaluation precluded his receiving an award
for Fiscal Year 2009 is a matter beyond the allegations of the complaint.
Such an argument is inappropriate at this stage and is irrelevant to
the issue of whether or not Complainant's Counselor contact was timely.
See Thomas v. Government Printing Office, EEOC Appeal No. 0120110432
(April 5, 2011), request for reconsideration denied, EEOC Request
No. 0520110455 (July 20, 2011).1
We further note that even assuming Complainant was aware that he would
not be receiving an award before the awards were distributed, had he
filed a complaint at that time he faced the prospect of the complaint
being dismissed under 29 C.F.R. § 1614.107(a)(5) for alleging a proposed
action. Because we find Complainant's EEO Counselor contact was timely,
we REVERSE the Agency's Decision and REMAND the matter back to the Agency
for further processing in accordance with the ORDER below.
ORDER (E0610)
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 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 (K0610)
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 77960, Washington, DC
20013. 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 (M0610)
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), at 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
77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
February 8, 2012
__________________
Date
1 We note that the acceptance of a complaint does not preclude an agency
from subsequently determining that the complaint should be dismissed
on procedural grounds. See, e.g., Jenkins v. Department of the Army,
EEOC Appeal No. 01972165 (November 4, 1997) citing Oaxaca v. Roscoe,
641 F.2d 386 (6th Cir. 1981) (no agency waiver of timeliness objection
by mere acceptance and investigation of untimely complaint).
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0120110614
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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