David Chan, Complainant,v.Shirley Ann Jackson, Chairman, Nuclear Regulatory Commission Agency.

Equal Employment Opportunity CommissionMar 14, 2000
01985813 (E.E.O.C. Mar. 14, 2000)

01985813

03-14-2000

David Chan, Complainant, v. Shirley Ann Jackson, Chairman, Nuclear Regulatory Commission Agency.


David Chan v. Nuclear Regulatory Commission

01985813

March 14, 2000

David Chan, )

Complainant, )

)

v. ) Appeal No. 01985813

Shirley Ann Jackson, ) Agency No. NRC-98-03

Chairman, )

Nuclear Regulatory Commission )

Agency. )

____________________________________)

DECISION

On July 14, 1998, complainant filed a timely appeal with this Commission

from a final agency decision (FAD) received by him on June 29, 1998,

pertaining to his complaint of unlawful employment discrimination in

violation of the Age Discrimination in Employment Act of 1967 (ADEA), as

amended, 29 U.S.C. � 621 et seq. <1> In his complaint, complainant alleged

that he was subjected to discrimination on the basis of age (56) when:

On February 4, 1997, complainant was not selected for a Reactor

Engineer, GC-13 position, under Vacancy Announcement No. 9757004.

The agency dismissed complainant's complaint on the grounds of untimely

EEO Counselor contact. Specifically, the agency claimed that complainant

did not initiate contact with an EEO Counselor until March 23, 1998,

outside the forty-five (45) day limitation period prescribed by EEOC

Regulation 29 C.F.R. � 1614.105(a)(1).

On appeal, the complainant claims that he was not aware of the procedures

for timely contacting an EEO Counselor or filing a formal complaint

until the April 11, 1997 letter from the EEOC. Complainant states

that his April 23, 1997 letter to the Director of the Office of Small

Business and Civil Rights (SBCR) asked for his EEO rights to be enforced.

Complainant also states that he did not learn of the need to contact an

EEO Counselor until the reply letter from SBCR dated May 9, 1997.

The record indicates that immediately following the alleged discriminatory

incident of February 4, 1997, complainant wrote a letter dated February

13, 1997, raising allegations of age discrimination to the agency's

chairman and to the Commission. On March 11, 1997, the Regional Personnel

Officer spoke to complainant via telephone regarding his concerns and

provided complainant with the name and telephone number of the Director of

the SBCR. In addition, in a letter dated April 11, 1997, the Commission

advised complainant of the proper procedures to follow in filing a

discrimination complaint and provided complainant a copy of the 1614

regulations and Section IV, Chapter 3 of EEOC Management Directive 110.

The record also shows that complainant first contacted the Director

of the SBCR on April 23, 1997, regarding his February 13, 1997 letter

to the chairman, which he mistakenly believed to be a formal EEO

complaint of discrimination. Complainant then filed an appeal with

the EEOC on April 28, 1997, which the Commission closed as premature.

EEOC Appeal No. 01974139 (June 27, 1997). By letter dated May 9,

1997, the Director of the SBCR again informed complainant that he must

contact her office to arrange EEO counseling, if he wished to pursue a

discrimination complaint. Finally, in a letter dated March 23, 1998,

complainant requested consultation with an EEO Counselor concerning the

alleged discriminatory incident of February 4, 1997.

In the present case, the Commission finds that complainant failed to

contact an EEO Counselor and initiate the EEO process in a timely manner.

Assuming complainant did not know he needed to contact an EEO Counselor

until he received the April 11, 1997 letter from the EEOC, he still

waited over a year to request consultation with an EEO Counselor. Thus,

we find that complainant did not pursue his rights in a timely manner.

Accordingly, the agency's decision to dismiss complainant's complaint

was proper and is hereby

AFFIRMED.

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 (S1199)

You have the right to file a civil action in an appropriate United States

District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you

receive this decision. 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. If you

file a request to reconsider and also file a civil action, 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:

March 14, 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 Assistant

1On 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.