0120092853
09-17-2009
Haroll J. Austin, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Haroll J. Austin,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120092853
Agency No. ARRRAD09MAR01216
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision (FAD) dated May 12, 2009, dismissing 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. In
his complaint, complainant alleged that he was subjected to discrimination
on the basis of age (60) and reprisal for prior EEO activity when:
1. while he was deployed in Iraq (2008), he was called "lightening"
and told he needed to use a walker;
2. while deployed in Iraq (2008), management gave false information
to medical which the Red River Army Depot relied upon as the basis for
returning him from Iraq;
3. he worked outside of his experience and classification in jobs with
higher physical demands, and without further medical evaluation and
treatment of the condition which was alleged by management, in Iraq and
the Red River Army Depot;1
4. on September 30, 2008, he was harassed by security guards and/or
police and forced to leave private property and accompany the guards onto
the depot property, and was subject to a drug test which was performed
inconsistently with protocol; and
5. he was terminated during his probationary period effective October
29, 2008, for illegal use of a controlled substance -marijuana [stemming
from the referenced drug test taken on September 30, 2008].
The FAD dismissed claims 1 and 2 for stating the same claim that in a
prior complaint. 29 C.F.R. � 1614.107(a)(1). It dismissed claim 2 for
failure to timely initiate contact with an EEO counselor. It reasoned
that complainant did not initiate EEO counseling until March 26, 2009,
beyond the 45 calendar day time limit to do so.
Complainant made argument on appeal in two separate pieces of
correspondence. He explicitly does not contest the dismissal of claims
1 and 2. Accordingly, we need not address this matter.
Complainant, who was an EEO Specialist for more than a 11/2 years starting
in 1985, had EEO training in February 2008 about the EEO program,
including the 45 calendar time limit to initiate EEO counseling, and
filed a prior complaint in mid-August 2008, concedes that he was aware
of EEO procedural matters such as timeliness. He argues that since the
effective date of his removal, he had continual discussions with the
agency's EEO office. After referring to the removal letter, he writes
that he timely contacted EEO staff, and identifies by name three staffers
with whom he had discussions. He writes that they discussed the agency's
physical boundaries, and that the EEO staffers continually told him his
only options were as stated in his removal letter. The removal letter
explains complainant may appeal to the Merit Systems Protection Board
(MSPB) if he is claiming discrimination based on political affiliation
or marital status.
Complainant contends that subsequently in mid-December 2008, he saw
two newspaper articles about disciplinary cases at the Red River Army
Depot which made him realize his own discipline was handled differently,
and this prompted him to contact the EEO office again.
In opposition to the appeal, in relevant part, the agency submits
evidence that complainant was aware of his EEO rights and procedures,
which is recounted above. It also argues that while complainant contends
he learned of a disparity in discipline in mid-December 2008, he did not
contact an EEO counselor until three months later. The agency does not
respond to complainant's contention that he timely initiated EEO contact
long prior to March 26, 2008.
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 also Gens
v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992).
An aggrieved person must seek EEO counseling within 45 days of the date
of the alleged discriminatory action, or in the case of a personnel
action, within 45 days of the effective date of the action. 29 C.F.R. �
1614.105(a)(1) & .107(a)(2). The agency or the Commission shall extend
the 45 day time limit when the individual shows there is a reason
to do so which is considered sufficient by the agency or Commission.
29 C.F.R. � 1614.105(a)(2).
Complainant contends that he contacted EEO staff within the applicable
regulatory time limit after the effective date of his removal, and was
told his only option was as stated in the removal letter. The record
does not reflect the precise nature of their discussions, so we decline
to rule that the agency misled complainant on his various procedural
rights to challenge the removal. However, complainant states he timely
discussed his removal with three identified EEO officials, and the agency
does not contest this. Given this, and the absence of documentation in
the record that complainant ever expressed he did not want to pursue an
EEO claim at the time; we find that complainant timely contacted an EEO
counselor regarding claim 5.
Complainant failed to timely initiate EEO counseling on claim 3. He does
not contend he discussed this matter with EEO staffers in his initial
contacts, and the counselor's report does not reflect that he raised
this claim in his subsequent contact with the EEO office in March 2009.
We also find that complainant did not show he timely contacted an EEO
counselor on claim 4. His appeal argument indicates he timely contacted
an EEO counselor regarding the removal, but it does not indicate whether
he did so on claim 4. However, as complainant claims the charges which
gave rise to his removal were discriminatory, the matter will need to
be investigated to the extent it relates to the discriminatory removal
claim.
ORDER (E0408)
The agency is ordered to process claim 5, as numbered herein,
in accordance with 29 C.F.R. � 1614.108. The agency shall
acknowledge to the complainant that it has received claim 5 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 (K1208)
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 77960, Washington,
DC 20013. 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 (M1208)
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 77960,
Washington, DC 20013. 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 (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 17, 2009
__________________
Date
1 The definition of this claim has been reworded to more closely match
the wording in the complaint.
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0120092853
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120092853