0120091319
06-25-2009
James B. Pollock, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
James B. Pollock,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120091319
Agency No. 9X1M08058
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a final agency decision (FAD)
dated December 22, 2008, 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 and harassed
on the basis of age (61) when:
1. on April 10, 2008, he was given an appraisal with ratings lower than
allegedly justified,1 and
2. he was not transferred into a new position as promised in a meeting
memorialized in a memorandum dated August 20, 2007.
The agency dismissed the complaint for failure to timely initiate EEO
counseling. Deeming that complainant contacted an EEO counselor on
May 28, 2008 on claim 1, the FAD found this was beyond the 45 calendar
day time limit for the entire complaint. 29 C.F.R. � 1614.105(a)(1)
& .107(a)(2).
Complainant filed an administrative grievance on May 27, 2008, challenging
the appraisal ratings referenced in claim 1, and the next day raised
age discrimination in the grievance. Reciting procedures governing the
grievance process, on June 20, 2008, the agency referred the claim to an
EEO counselor. It explained that the administrative grievance procedure
requires that when discrimination is raised in the grievance process, the
grievance terminates and the matter is referred to an EEO counselor.
After the matter was referred to an EEO counselor, complainant raised
claim 2 about not being transferred to a new position. A memorandum
dated August 20, 2007 indicated that a new position description would
be developed at a later date and complainant would begin the new duties
at a date to be announced. It indicated complainant would be provided
further details on the new position as it develops. According to the
counselor's report, Division Chief M.G. stated a position description was
written for the job, but the applicable program that was being planned
never materialized, so the job was never put in place. According to
the counselor's report, Division Chief M.G. said complainant asked him
about the job, and he told him that the program was placed on hold.
It does not indicate when this conversation occurred.
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 Commission shall
extend the 45 day time limit when the individual shows he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred. 29 C.F.R. � 1614.105(a)(2). 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).
On appeal complainant argues that the FAD used the incorrect date
to start the time limit. He states that he contacted agency Equal
Opportunity Manager (EOM) K.T. by telephone within 45 calendar days of
receiving the appraisal referenced in claim 1, and that the EOM informed
him that the call was being logged documenting the date and time.
Complainant asks that the date of contact logged by the EOM be used.
Complainant, who is pro se, does not indicate that he copied his appeal
argument to the agency, as required. 29 C.F.R. � 1614.403(b) & (f).
The FAD gave the address for doing so. The agency does not respond to
complainant's appeal.
The regulatory deadline for contacting an EEO counselor on claim 1
was Tuesday, May 27, 2008.2 On appeal, complainant contends that
he contacted the EOM K.T. by telephone within 45 calendar days of
receiving the appraisal in claim 1 and the EOM said he logged the call.
Given complainant's specified contention, and the agency's lack of an
opportunity to respond, we remand the matter of the timeliness of claim
1 for a supplemental investigation, as outlined below.
It appears that complainant did not contact an EEO counselor on
claim 2 until June 20, 2008. The record does not reflect, however,
when complainant learned that he would not receive the job. Further,
there is some question as to whether this claim states a claim since
the counselor's report indicates the job never materialized for anyone.
The record needs to be developed on this matter.
Accordingly, the FAD is vacated and the complaint is remanded in
accordance with the order below.
ORDER
The agency is ordered to take the following remedial actions:
1. The agency shall acknowledge to the complainant that it has received
the remanded claims within 30 calendar days of the date this decision
becomes final;
2. The agency shall supplement the record with information on whether
complainant contacted Equal Opportunity Manager K.T. by telephone
regarding claim 1 within 45 calendar days of receiving the referenced
appraisal and whether the call is logged;
3. The agency shall supplement the record with information on the date
Division Director M.G. allegedly told complainant that the program which
contained the job referenced in claim 2 was put on hold;
4. The agency shall supplement the record with information on what
occurred with referenced job in claim 2, and when;
5. Thereafter, the agency shall provide complainant a copy of the
supplemental record, and offer him an opportunity to respond in writing.
Any response shall be included in the supplemental record.
After supplementing the record, as directed above, the agency shall either
accept complainant's complaint, in whole or part, for investigation3
and process in accordance with 29 C.F.R. Part 1614, or issue a new FAD,
appealable to the EEOC, dismissing the entire complaint. The agency shall
issue a letter accepting the complaint or a FAD dismissing the entire
complaint within 60 calendar days after this decision becomes final.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the letter accepting the complaint or FAD dismissing the entire
complaint 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 (R0408)
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 (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
June 25, 2009
__________________
Date
1 The FAD defined a third claim which is not recounted here because it
was evidence in support of claim 1, not a separate claim.
2 The 45th calendar day fell on Sunday, May 25, 2008. May 26, 2008, was
Memorial Day, a federal holiday. Hence, under Commission regulations
on the computation of time, the deadline to contact an EEO counselor
was May 27, 2008. 29 C.F.R. � 1614.604(d).
3 If the agency dismisses only part of the complaint, it must apply 29
C.F.R. � 1614.107(b).
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0120091319
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120091319