01a00549
02-18-2000
Alfonso E. Caballero, )
Complainant, )
)
v. ) Appeal No. 01A00549
F. Whitten Peters, ) Agency No. BV1M970007
Acting Secretary, )
Department of the Air Force, )
Agency. )
____________________________________)
DECISION
On October 29, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) received by him on
October 20, 1999, 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 current appeal in accordance with EEOC Order
No. 960.001.
In its final decision, the agency defined the claim of complainant's April
23, 1997 complainant as whether complainant was discriminated against
on the bases of his national origin (Hispanic), age (forty and over)
and disability (physical) when: he was not selected for reassignment
to an HSC/EME position. The agency dismissed that above allegation for
failure to initiate timely contact with an EEO Counselor. Specifically,
the agency found that complainant was informed that he was not selected
for the position on September 5, 1999 and his initial EEO counselor
contact on November 7, 1999 was more than forty-five days after the
purportedly discriminatory act occurred.
Upon review, the Commission finds that the complaint file is vague
and unclear. First, the record contains a formal complaint, but it is
incomplete because the addendum is missing. Second, the record does not
contain any evidence as to when complainant received notice that he was
not
selected for the reassignment. In stead, complainant, on appeal, submits
an email from his supervisor informing him that he was not selected due
to health reasons, but the email fails to indicate the date in which
complainant opened and read it. Furthermore, on appeal, complainant
raises the argument that he contact an EEO Counselor on October 24, 1999,
when he filed complaint BV1M97004, and the current claim was actually
raised therein. However, the agency has chosen not to submit an appeal
statement therefore, this issue has gone unrebutted.
Finally, in order to avoid speculation as to when complainant was
notified as to his non-selection, and whether this issue was raised with
an EEO Counselor on October 24, 1996 or included in a prior complaint,
the Commission will vacate the final agency decision in its entirety.
Consequently, we will not address the propriety of the agency's decision
of the above claim as it is presently defined in the final decision.
Accordingly, the agency's final decision is VACATED and REMANDED for
further processing in accordance with this decision, the order below,
and applicable regulations.
ORDER
The agency is ORDERED to take the following actions:
Within fifteen (15) calendar days of the date this decision becomes final,
the agency shall undertake a supplemental investigation to determine
when complainant received the email informing him he was not selected
for the reassignment position.
Within fifteen (15) calendar days of the date this decision becomes final,
the agency shall also supplement the record to include complainant's
formal complaint for agency case BV1M970004 and BV1M970007. This will
include complaint form DD2655 and any addendums thereto.
Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall also supplement the record to include the entire
complaint file for agency case BV1M97004.
Within fifteen (15) calendar days of the date this decision becomes final,
the agency shall also undertake a supplemental investigation to determine
whether or not complainant raised the issue of non-selection with an
EEO Counselor on October 26, 1999. Furthermore, the investigation will
determine whether or not the issue of non-selection was included in
complaint BV1M97004.
Within thirty (60) calendar days of the date this decision becomes final,
the agency shall issue a notice of processing and/or a new FAD regarding
above claim.
A copy of the agency's notice of processing and/or new FAD regarding the
above claim 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 (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R1199)
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:
February 18, 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 Equal Employment Assistant1On 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.