01994695
11-05-1999
Gerold J. Gallegos, Appellant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Gerold J. Gallegos v. Department of the Interior
01994695
November 5, 1999
Gerold J. Gallegos, )
Appellant, )
)
v. )
) Appeal No. 01994695
Bruce Babbitt, ) Agency No. BIA-99-008
Secretary, )
Department of the Interior, )
Agency. )
______________________________)
DECISION
On May 19, 1999, appellant filed a timely appeal with this Commission
from a final agency decision (FAD), dated May 10, 1999, dismissing two
allegations raised in his complaint, for untimely counselor contact.
The Commission accepts the appeal in accordance with EEOC Order No. 960,
as amended.
Appellant contacted the EEO office regarding allegations of discrimination
based on race, sex, age, and reprisal. Informal efforts to resolve
appellant's concerns were unsuccessful. Accordingly, appellant filed
a formal complaint dated December 28, 1998.
The agency defined the allegations as follows:
On July 6, 1998, appellant's request for compensatory time off was
denied;
On July 30, 1998, appellant was the only one who was told when to leave
and return from travel for training; to be there at the training session
from 8:00 a.m. until 5:30 p.m. each day; and, not to say anything bad
about his supervisor or BIA;
On September 14, 1998, appellant learned that the two SF-71s appellant
submitted for medical leave with a doctor's statement were not approved,
so appellant had to take annual leave;
On September 16, 1998, appellant was told by the Area Director in a
very hostile manner, you do not want to argue with me and who gets the
last word, set up straight and unfold your arms;
On September 21, 1998, appellant submitted a leave slip to his supervisor
and it was never approved;
On September 25, 1998, while appellant was out of the office, there was
a meeting scheduled at Sisseton and appellant was expected to be there,
but wasn't told about the meeting until two and a half hours before
the meeting;
On September 30, 1998, appellant was subjected to verbal threats of
bodily harm and verbally abused by the acting Area Contracting Officer;
and,
On November 16, 1998, appellant submitted his travel voucher to the
acting Area Director for signature, it was not signed for several days,
and then passed on to someone else for signature.
The agency issued a FAD dismissing allegations 1 and 2 for untimely
counselor contact, pursuant to 29 C.F.R. �1614.107(b). The agency stated
that appellant did not contact an EEO Counselor until September 15, 1998,
approximately 71 days after the incident in allegation 1 and 47 days after
the incident in allegation 2. Indicating that appellant had previously
participated in the EEO process, the agency concluded that appellant
should have been aware of the time limits for contacting a counselor.
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 forty-five (45) days of the effective date of the action.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
In the instant case, the EEO Counselor's Report shows that appellant
initially contacted a counselor on September 15, 1998. However, on
appeal, appellant argues that he contacted EEO Manager A in July 1998.
Appellant contends that although he wrote to EEO Manager A on July 27 and
July 30, 1998, a counselor did not contact him until September 16, 1998.
The agency has not addressed appellant's argument on appeal. Given the
present record, we cannot ascertain whether appellant's initial EEO
Counselor contact occurred on September 15, 1998, as determined by the
agency, or in late July 1998, as asserted by appellant on appeal.
The Commission finds that the agency must supplement the record with
evidence addressing appellant's contention that he contacted the
EEO Manager within the forty-five day time limitation with regard to
the matters raised in allegations 1 and 2. Accordingly, the agency's
decision dismissing allegations 1 and 2 is VACATED. Allegations 1 and
2 are REMANDED to the agency for further processing in accordance with
this decision and the Order below.
ORDER
The agency shall supplement the record with evidence addressing whether
appellant contacted EEO Manager A prior to September 15, 1998. Such
evidence should include:
1. affidavits from persons in the EEO Office, including EEO Manager A,
who might have been aware of any contact made by appellant with the EEO
Office during the relevant time frame; and
2. copies of the relevant portions of any logs kept in the EEO Office,
and by EEO Manager A, showing the names of the persons who contacted
the office during the relevant time frame.
The agency shall conduct an inquiry sufficient to enable it to make a
reasoned decision as to whether allegations 1 and 2 were timely raised
with an EEO Counselor. The agency, within 30 days of receipt of this
decision, shall issue a letter to appellant accepting allegations 1
and 2 for investigation and/or shall issue a final decision dismissing
allegations 1 and 2. A copy of the agency's letter to appellant accepting
the allegations for investigation and/or a copy of the final decision
dismissing the allegations must be sent to the Compliance Officer as
referenced herein.
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:
11/05/1999
___________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations