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