01994110_r
09-15-1999
Dennis L. Wilson, Appellant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Dennis L. Wilson, )
Appellant, )
)
v. ) Appeal No. 01994110
) Agency No. FNP-99-035
Bruce Babbitt, )
Secretary, )
Department of the Interior, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination
in violation of the Age Discrimination in Employment Act of 1967, as
amended, 29 U.S.C. �621 et seq. The final agency decision was issued on
March 29, 1999. The appeal was postmarked April 19, 1999. Accordingly,
the appeal is timely (see 29 C.F.R. �1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint on the grounds of failure to contact an EEO Counselor in a
timely manner.
BACKGROUND
On June 5, 1998, appellant was notified that he would not be receiving
a permanent position subject to furlough. Appellant was informed that
his job status was seasonal. According to the EEO Counselor's report,
appellant initiated contact with an EEO Counselor on September 1, 1998.
In a formal EEO complaint dated November 20, 1998, appellant alleged
that he had been discriminated against on the basis of his age (59)
when he learned that his position was seasonal rather than permanent
subject to furlough.
In its final decision, the agency dismissed the complaint on the grounds
that appellant failed to contact an EEO Counselor in a timely manner.
The agency stated in its final decision that appellant's EEO contact of
September 1, 1998, was more than 45 days after appellant learned that
the Maintenance Worker position for which he was selected was seasonal,
rather than subject to furlough. The agency determined that appellant
should have been aware of the 45-day limitation period for contacting
an EEO Counselor based on the presence of EEO posters and there being
seasonal employee training which covers the EEO process.
On appeal, appellant contends that he contacted an EEO Counselor on June
26, 1998, and that he spoke to the EEO Counselor on July 6, 1998, but
that the EEO Counselor did not want to talk about his case because the
Facility Manager at appellant's worksite was the Counselor's brother.
Appellant indicates that on July 7, 1998, he contacted union officials
and filed a grievance with regard to his status as a seasonal employee.
Appellant indicates that the matter was not resolved at a labor-management
meeting regarding the grievance on August 18, 1998. Appellant states
that he contacted a different EEO Counselor on September 1, 1998.
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 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) provides that the agency or the
Commission shall extend the 45-day time limit when the individual shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not have
known that the discriminatory matter or personnel action occurred, that
despite due diligence he or she was prevented by circumstances beyond his
or her control from contacting the counselor within the time limits, or
for other reasons considered sufficient by the agency or the Commission.
The record reveals that appellant learned on June 5, 1998, that his
position status was seasonal rather than permanent subject to a furlough.
Appellant contends that he contacted an EEO Counselor on June 26, 1998,
and July 6, 1998, with regard to this matter. Appellant maintains that
the EEO Counselor told him on July 6, 1998, that he could not talk
about the case because his brother was appellant's Facility Manager.
We find that the agency has not submitted argument or evidence to refute
appellant's contention that he contacted an EEO Counselor within 45 days
of when he learned that his position status was seasonal. 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. Department of Energy, EEOC Request No. 05930703
(January 4, 1994) (quoting Williams v. Department of Defense, EEOC Request
No. 05920506 (August 25, 1992)). In addition, in Ericson v. Department
of the Army, EEOC Request No. 05920623 (January 14, 1993), the Commission
stated that the agency has the burden of providing evidence and/or proof
to support its final decisions. See Gens v. Department of Defense,
EEOC Request No. 05910837 (January 31, 1992). In the instant case, we
find that the agency did not meet that burden. Therefore, we find that
appellant contacted an EEO Counselor in a timely manner. Accordingly,
the agency's decision to dismiss appellant's complaint on the grounds
of untimely EEO contact was improper. The complaint is hereby REMANDED
for further processing in accordance with the ORDER below.
ORDER (E1092)
The agency is ORDERED to process the remanded complaint in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded complaint within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
Sept. 15, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations