01986980
01-19-2000
James J. Glade, Appellant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
James J. Glade v. Department of the Interior
01986980
January 19, 2000
James J. Glade, )
Appellant, )
)
v. ) Appeal No. 01986980
) Agency No. BIA-97-065
Bruce Babbitt, )
Secretary, )
Department of the Interior, )
Agency. )
)
DECISION
On September 10, 1998, complainant filed an appeal from a final agency
decision which dismissed his complaint for failure to contact an EEO
Counselor in a timely manner.<1>
The June 16, 1998 final agency decision identified the dismissed
allegation of the undated complaint as whether complainant was
discriminated against on the bases of age (50) and in reprisal (prior
EEO activity) when on April 15, 1996, he became aware that management
did not advertise for the position of Superintendent, GS-15, Pine Ridge
Agency, but filled the vacancy noncompetitively and the complainant
was not allowed the opportunity to compete for a position for which
he was qualified. In dismissing the complaint, the agency noted that
complainant did not initiate EEO contact until April 15, 1997, although
he was aware of the alleged discriminatory event on April 15, 1996.
On appeal, complainant asserts that he sent his complaint to the
Aberdeen Area Office on three occasions and the EEO office lost his
complaints. Complainant also asserts that his pursuit of EEO counseling
may have been either deliberately or inadvertently delayed by the
EEO Office. In support of his appeal, complainant submits a July 13,
1998 Memorandum, which he prepared indicating that he contacted EEO
Counselor A during the week of April 22, 1996, to file the present
complaint and that all the information was sent to the EEO Director of
the Aberdeen Area Office as the EEO Counselor had been advised to do.
The Memorandum contains the signed concurrence of EEO Counselor A.
Generally, an aggrieved person must initiate contact with an EEO Counselor
within 45 days of the date of the matter alleged to be discriminatory.<2>
See 29 C.F.R. �� 1614.105(a)(1), 1614.107(a)(2). EEOC Regulation 29
C.F.R. � 1614.604(c) provides that the time limits in Part 1614 are
subject to waiver, estoppel and equitable tolling.
Upon review, the Commission finds that the agency's dismissal of the
complaint was improper. The Commission finds that based on the July 13,
1998 Memorandum, complainant contacted an EEO Counselor in April 1996.
While in its final decision, the agency states that the complainant did
not contact an EEO Counselor until April 1997, the Counselor's Report
does not indicate a date of initial contact. In addition, although
the EEO Counseling Initial Interview Report is dated April 15, 1997,
that date is in conflict with the date provided in the July 13, 1998
Memorandum which the Commission finds persuasive based on the concurrence
of EEO Counselor A. Where 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." Williams v. Department
of Defense, EEOC Request No. 05920506 (August 25, 1992). Moreover,
the record does not indicate that the EEO Counselor inquired into the
reasons for the alleged delay in initiating EEO contact. See McDonald
v. Department of Transportation, EEOC Request No. 05960642 (August 11,
1998); Franklin v. Department of Defense, EEOC Request No. 05910767
(December 9, 1991)(EEO Counselor must inquire into the reasons for delay
when a complainant initiates counseling beyond the applicable time limit).
Consistent with the foregoing discussion, the agency's final decision
is REVERSED and the complaint is REMANDED to the agency for further
processing in accordance with applicable regulations.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to
the complainant that it has received the remanded claims 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 (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 (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)
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:
January 19, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date Equal Employment Assistant
1The agency failed to provide a copy of a certified mail return receipt or
any other material capable of establishing the date appellant received the
agency's final decision. Accordingly, since the agency failed to submit
evidence of the date of receipt, the Commission presumes that appellant's
appeal was filed within thirty (30) days of receipt of the agency's final
decision and the appeal is accepted as timely.
2On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.