Harry G. Martin, Appellant,v.Kenneth S. Apfel, Commissioner, Social Security Administration,) Agency.

Equal Employment Opportunity CommissionJan 12, 1999
01981328 (E.E.O.C. Jan. 12, 1999)

01981328

01-12-1999

Harry G. Martin, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration,) Agency.


Harry G. Martin v. Social Security Administration

01981328

January 12, 1999

Harry G. Martin, )

Appellant, )

)

v. ) Appeal No. 01981328

) Agency No. 98-0043-SSA

Kenneth S. Apfel, )

Commissioner, )

Social Security Administration,)

Agency. )

)

DECISION

The Commission finds that the agency's November 6, 1997 final decision

dismissing a portion of appellant's complaint on the grounds of untimely

EEO counselor contact, is proper pursuant to the provisions of 29

C.F.R. �1614.107(b).

The record shows that appellant sought EEO counseling on March 17, 1997,

alleging that he had been discriminated against on the bases of race

(Black), sex (male) and age (62) when: (1) he was not selected for the

GS-105-14 Social Insurance Administrator (District Manager) position

which was posted under vacancy announcement number (VAN) ROII 332-97U

in the Neptune, New Jersey Field Office; and, (2) he was not selected

for the GS-105-14 Social Insurance Administrator (District Manager)

position which was posted under VAN ROII 307-96U. The agency accepted

allegation (1) for investigation but dismissed allegation (2) on the basis

of untimely EEO counselor contact after finding that although appellant

was aware of his non-selection as of January 23, 1997, he did not seek

EEO counseling until March 17, 1997, because he did "not want to make

any waves" that could hurt his chances of being selected for VAN ROII

332-97U. The agency found that this reason was not sufficient to toll

the 45-day time limit. We agree.

The Commission has held that where there is an issue of timeliness, the

agency always bears the burden of obtaining sufficient information to

support a reasoned determination as to timeliness. Williams v. Department

of Defense, EEOC Request No. 05920506 (August 25, 1992). Appellant's

argument that he did "not want to make any waves" is insufficient to

excuse his untimeliness. Accordingly, the agency has met its burden

concerning the issue of untimeliness. Accordingly, the agency's decision

dismissing allegation (2) is AFFIRMED.

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. �l6l4.604(c).

RIGHT TO FILE A CIVIL ACTION (S0993)

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 consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (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:

January 12, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations