01A04762_r
09-20-2001
Craig A. Hampton, Complainant, v. Larry G. Massanari, Acting Commissioner, Social Security Administration, Agency.
Craig A. Hampton v. Social Security Administration
01A04762
September 20, 2001
.
Craig A. Hampton,
Complainant,
v.
Larry G. Massanari,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A04762
Agency No. 00350SSA
DECISION
On June 23, 2000, complainant timely filed an appeal with the Commission
from a final agency decision dismissing his complaint of unlawful
discrimination on the bases of race, sex, age, and disability. In his
complaint, complainant alleged that the agency discriminated against him
when it failed to select him for a GS-990-10 Post Entitlement Technical
Expert position.
In its final decision, the agency found that complainant failed to
file his complaint in a timely manner. The agency found that the
agency provided complainant a notice of the right to file a formal
complaint that was received by complainant on April 25, 2000, but that
complainant's complaint was postmarked May 17, 2000, which is beyond
the 15-day limitation period for timely filing a formal complaint.
EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a written
complaint with an appropriate agency official within fifteen (15) calendar
days after the date of receipt of the notice of the right to file a formal
complaint. Further, 29 C.F.R. � 1614.107(a)(2) provides that the agency
shall dismiss a complaint that fails to comply with the applicable time
limits contained in �� 1614.105, 1614.106, and 1614.204(c), unless the
agency extends the time limits in accordance with � 1614.604(c).
The record in this case indicates that complainant signed and acknowledged
a document on April 25, 2000. However, the Commission notes that the
record contains no evidence that the notice informed complainant that
he must file an EEO complaint within 15 days of receipt of the notice,
as required by 29 C.F.R. � 1614.105(d). Significantly, we note that the
aforementioned document contains information relating to a complainant's
option to file a complaint under EEO procedure or negotiated grievance
procedure, as well as notice of time limits for filing a grievance
complaint. However, there is no evidence in the record that complainant
received notice of EEO time limits for filing an EEO complaint.
The Commission has held that where there is an issue of timeliness, the
agency bears the burden of obtaining sufficient information to support a
reasoned determination of timeliness. Guy v. Department of Energy, EEOC
Request No. 05930703 (January 4, 1994) (quoting Williams v. Department
of Defense, EEOC Request No. 05920506 (August 25, 1992). Likewise, the
Commission has held that the �agency has the burden of providing evidence
and/or proof to support its final decisions.� Ericson v. Department of
the Army, EEOC Request No. 05920623 (January 14, 1993). Consequently,
the Commission finds that the agency failed to meet its burden of proving
it provided notice of time limits for filing an EEO complaint; therefore,
it erred in its determination that the complaint was untimely filed.
Accordingly, the agency's final decision dismissing complainant's
complaint is REVERSED, and the complaint is hereby REMANDED to the agency
for processing in accordance with the ORDER set below.
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
September 20, 2001
__________________
Date