01a02129
05-16-2000
James A. Duke, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
James A. Duke v. Department of Transportation
01A02129
May 16, 2000
James A. Duke, )
Complainant, )
)
v. ) Appeal No. 01A02129
) Agency No. 5005022
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
____________________________________)
DECISION
The record indicates that complainant sent a letter dated November 12,
1999, to the Regional Director of the agency's Office of Civil Rights.
In this letter, complainant alleged discrimination on the bases of
disability (unspecified) and in reprisal for prior protected activity
when:
on October 12, 1999, the agency awarded others at his facility 16
hours of time-off; and
on October 20, 1999, he was excluded from the Bosses' Appreciation
Day lunch and was left to work the telephone switchboard.
Interpreting complainant's November 12, 1999 letter as a formal complaint,
the agency issued a decision on December 14, 1999, dismissing the
complaint for failure to contact an EEO Counselor.
In response to the agency's dismissal, complainant's attorney notified
the agency that complainant's letter of November 12, 1999, was not a
formal complaint, but rather was a request for counseling. The attorney
argued that complainant sent his letter to the Regional Director of the
Office of Civil Rights for the agency, rather than to the S.W. Region's
Civil Rights Office of the Federal Aviation Administration, where
he was dissatisfied with the processing of his prior EEO complaint.
According to the attorney, complainant was seeking to amend his prior
complaint to include his claims of retaliation.
According to the regulations, a complainant must bring issues to
the attention of the EEO counselor within 45 days of the alleged
discriminatory event. 29 C.F.R. � 1614.105(a)(1). However, the
Commission has held that in order to establish EEO counselor contact,
an individual must contact an agency official logically connected
to the EEO process and exhibit an intent to begin the EEO process.
See Allen v. United States Postal Service, EEOC Request No. 05950933
(July 8, 1996). Clearly, the Director of the agency's Office of Civil
Rights is logically connected to the EEO process. Complainant, through
his attorney, clearly indicated that he did not intend his November 12,
1999 letter to be a formal complaint, but rather a request for counseling
on claims of retaliation which he wanted to add to his prior complaint.
Consequently, we find that the agency's dismissal of complainant's
request for counseling was improper. The agency's December 14, 1999
decision is hereby VACATED. Complainant's request is hereby REMANDED
to the agency for further processing.
ORDER
The agency is ORDERED to process complainant's November 12, 1999 request
for counseling in accordance with 29 C.F.R. � 1614.105. The agency shall
acknowledge to the complainant that it has received the remanded matter
within thirty (30) calendar days of the date this decision becomes final.
The agency shall also notify complainant of the opportunity to amend
his prior EEO complaint, if appropriate, pursuant to 64 Fed. Reg. 37,
644, 37,656, (1999)(to be codified and hereinafter referred to as 29
C.F.R. � 1614.106(d)). A copy of the agency's letter of acknowledgment
to complainant, as well as the notice of the opportunity to amend, if
appropriate, 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:
May 16, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations