Francisco D. Esteban, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionJul 12, 2000
01a03210 (E.E.O.C. Jul. 12, 2000)

01a03210

07-12-2000

Francisco D. Esteban, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Francisco D. Esteban v. Richard J. Danzig

01A03210

July 12, 2000

Francisco D. Esteban, )

Complainant, )

)

v. ) Appeal No. 01A03210

) Agency No. 006175501002

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

____________________________________)

DECISION

Complainant timely initiated an appeal from the agency's dismissal of

his equal employment opportunity (EEO) complaint of unlawful employment

discrimination on the bases of race (Pacific Islander Filipino)

and age (DOB: 09/17/27), 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, as amended, 29 U.S.C. � 621

et seq.<1> Complainant alleged that he was discriminated against when:

(1) on September 30, 1997, he was separated by a Reduction-in-Force

(RIF) action; and (2) since September 30, 1997, he was not referred

or selected for a position from the Priority Placement Program (PPP).

The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to

be codified at 29 C.F.R. � 1614.405).

The record reveals that complainant was employed as a GS-4 Security

Guard at the agency's U.S. Fleet and Industrial Supply Center, Guam.

Complainant was separated effective September 30, 1997, due to the Base

Realignment and Closure of 1995. Complainant contacted the EEO Office

on August 20, 1999, by letter, jointly filing an informal complaint

with a co-worker who was also separated in the RIF. Thereafter, the

agency issued a dismissal of issue (1) for untimely contact with an

EEO counselor. Complainant appealed.

Upon review, the Commission finds that complainant presents no persuasive

arguments or evidence regarding why he failed to contact an EEO counselor

within the regulatory time period. Accordingly, complainant's issue (1)

was properly dismissed pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)(to

be codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �

1614.107(a)(2)) for untimely contact with an EEO counselor.

The Commission further finds that the agency failed to address issue (2).

On remand, the agency shall continue the processing of that claim.

CONCLUSION

Accordingly, the agency's dismissal of issue (1) is AFFIRMED and issue

(2) is REMANDED for further processing.

ORDER (E0400)

The agency is ORDERED to process the remanded claim in accordance with

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to

the complainant that it has received the remanded claim 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 (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 (M0300)

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)

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:

July 12, 2000

________________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

FOR OFO INTERNAL CIRCULATION ONLY

FOR PROCEDURAL CASES

TO: CARLTON M. HADDEN, ACTING DIR.

OFFICE OF FEDERAL OPERATIONS

APPEAL NUMBER: 01A03210

AGENCY NUMBER: 006175501002

(APPROVED) (DATE)

REQUEST NUMBER:

HEARING NUMBER:

THE ATTACHED DECISION IS RECOMMENDED FOR APPROVAL:

TITLE

NAMES

INITIAL

DATE REVIEWED

(ATTORNEY): Doreen Kaufmann

7-11-00

(SUPERVISOR: Mary Jean Moore

(DIVISION DIRECTOR): Marie Fitzgerald

1.) (COMPLAINANT(S) Francisco D. Esteban

2.) (AGENCY) Department of the Navy

3.) (DECISION) Affirmed in part, Remanded

4.) (STATUTE(S Title VII, ADEA

5.) (BASIS(ES) RA, OA

6.) (ISSUE(S) L1, H2

7.) (TYPIST/DATE/DISK) DK01/ 7-11-00

SPELL CHECK: YES

(PLEASE CHECK ALL APPLICABLE CODES)

PROCEDURAL CODES

LETTER CLOSURE CODES

X 3K - PROCEDURAL DECISION

? 3N - APPEAL DENIED/DISMISSED

? 3P - ADVERSE INFERENCE RAISED

4H - OFO AFFIRMED FAD

? 3M - OFO REVERSED AND REMANDED

? 4J - OFO MODIFIED FAD

? 3L - OFO VACATED/REMANDED ALL OF

AGENCY'S MERITS DECISION

? 4Q - COMPLIANCE REQUIRED

? 3B - FAD RESCINDED

? 3C - DUPLICATE DOCKET NUMBER

? 3D - WITHDRAWAL

? 3E - COMPLAINT SETTLED

? 3G - OTHER LETTER CLOSURE

? 3R - RETURN TO AG FOR CONSOLIDATION

? 3S - RETURN TO AJ FOR CONSOLIDATION

? 7N - CIVIL ACTION FILED

[REVISED AS OF 2/3/00]

1 On 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.