U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Complainant v. Ray Mabus, Secretary, Department of the Navy, Agency. Request No. 0520120198 Appeal No. 0120112022 Agency No. DON-10-62381-00764 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120112022 (November 23, 2011). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). After reconsidering the previous decision and the entire record, the Commission finds that the request meets the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to GRANT the request. BACKGROUND On March 9, 2010, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of disability when his medical information was improperly disseminated. On January 24, 2011, the Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO counselor contact, reasoning that Complainant did not initiate contact with a counselor on these matters within the 45-day time limit. In our previous decision, we affirmed the Agency's dismissal of Complainant's EEO complaint. Therein, we noted that the alleged discriminatory event occurred on May 31, 2009, but that Complainant did not contact an EEO counselor until August 21, 2009. We noted that Complainant's EEO counselor contact was beyond the 45-day time limit. In his request for reconsideration, Complainant, in pertinent part, contends that he was not aware of the 45-day time limit to contact an EEO counselor. Complainant contends that none of his supervisors informed him of the 45-day time limit. Complainant also contends that he was stationed on an oceanographic vessel, which was at sea at the time the alleged discriminatory event took place. In response, the Agency asserts that Complainant had constructive notice of the 45-day limitation period for EEO counselor contact. The Agency asserts that Complainant received EEO training, which informed him of the 45-day time limit. The Agency provides a copy of a sign-in sheet from a "Non-Supervisory-POSH, No Fear Act, EEO process" training held in May 2008, which shows that Complainant attended the training. The Agency also attaches a power point slide to the sign in sheet that explains 45-day time limit. However, this slide does not list which training it pertains to, or whether Complainant actually viewed or received it. The Agency also asserts that Complainant for the first time on reconsideration contends that he had no knowledge of the 45-day time limit. ANALYSIS 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 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 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 45 day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 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 her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the Agency or the Commission. 29 C.F.R. § 1614.105(a)(2). Moreover, where, as here, there is an issue of timeliness, "[a]n Agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of Def., EEOC Request No. 05920506 (Aug. 25, 1992)). In addition, in Ericson v. Department of the Army, the Commission stated that "the Agency has the burden of providing evidence and/or proof to support its final decisions." Ericson, EEOC Request No. 05920623 (Jan. 14 1993); see also Gens v. Dep't of Defense, EEOC Request No. 05910837 (Jan 31, 1992). In this case, Complainant claims he was not notified of the 45-day time limit for contacting an EEO Counselor. The Agency contends that it gave Complainant constructive notice of the 45-day time limit. In support of its contention, the Agency provided a copy of a sign-in sheet from a "Non-Supervisory-POSH, No Fear Act, EEO process" training held in May 2008, which shows that Complainant attended the training. The Agency also attaches to the sign-in sheet a power point slide that explains the 45-day time limit. However, these documents do not establish that Complainant had constructive notice of the 45-day limitation period. While the Agency attaches a power point slide that explains the 45-day limitation period, the slide does not list which training it pertains to, or whether Complainant actually viewed or received it. We find the record is devoid of any indication of whether the requisite 45-day time limit was covered during the course of the training. We note that it is the burden of an Agency to have evidence or proof to substantiate its final decision. See Marshall v. Dep't of the Navy, EEOC Request No. 05910685 (Sep. 6, 1991). Under these circumstances, we find that the Agency has not shown that Complainant had constructive knowledge of the EEO time limit. EEOC Regulation 29 C.F.R. § 1614.604(c) provides that all time limits are subject to waiver, estoppels, and equitable tolling. Accordingly, we will exercise our discretion in this matter and find that Complainant has presented an adequate justification for a waiver of the 45-day time limit. See Watts v. U.S. Postal Serv., EEOC Request No. 05A50553 (Aug. 18, 2005) (extending the 45-day time limit pursuant to 29 C.F.R. § 1614.604(c), finding no evidence that Complainant had knowledge of the time limit); Tse-Au v. Dep't of the Army, EEOC Appeal No. 0120101359 (July 22, 2011) (tolling the 45-day time limit, finding no evidence that the EEO training provided to complainant covered the time limit); Boggins v. Presidio Trust, EEOC Appeal No. 0120100121 (July 29, 2011), req. for recon den'd, EEOC Request No. 0520110676 (Feb. 24, 2012) (waiving the 45-day time limit, finding no evidence that the EEO training provided to complainant covered the time limit). We note that Complainant, in his statement on appeal for our previous decision, specifically requested a waiver of the 45-day time limit, noting that he thought that he could wait to contact an EEO counselor. CONCLUSION After reconsidering the previous decision and the entire record, the Commission finds that complainant's request meets the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to grant the request. The decision of the Commission in Appeal No. 0120112022 is VACATED and the agency's final decision is reversed. There is no further right of administrative appeal on the decision of the Commission on a Request to Reconsider. 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 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 (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. 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainants Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: _____________________________ Carlton M. Hadden, Director Office of Federal Operations September 22, 2015 Date 2 0520120198 2 0520120198