01a30539_r
03-05-2003
James M. Hart, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
James M. Hart v. Department of the Navy
01A30539
March 5, 2003
.
James M. Hart,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A30539
Agency No. DON-02-00164-009
DECISION
Complainant filed the instant appeal from the agency's decision dated
September 23, 2002, dismissing complainant's complaint due to untimely
EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2). In his
complaint, complainant alleged discrimination based on age (DOB: 4/25/56),
sex (male), and disability, when he was not selected for an Electrician,
Pipe Fitter or Maintenance Mechanic Apprentice position in Code 09 and
an Ordnance Equipment Worker/Mechanic (WG-08/10) position in Code 40.
The record indicates that complainant was notified that he was not
selected for the subject positions in August 2001, and December 2001,
respectively. Complainant contacted an EEO Counselor regarding the
matters on June 26, 2002, which was beyond the 45-day time limit set
by the regulations. On appeal, complainant contends that he wrote to
his Congressman seeking his assistance and he timely contacted an EEO
Counselor after he received a response from the Congressman on June 11,
2002. The record contains complainant's letters dated March 1, 2002, and
February 28, 2002, which were sent to a Congressman. After a review of
the record, the Commission finds that complainant should have reasonably
suspected the alleged discrimination regarding his non-selection for
both positions by, at the latest, March 1, 2002.
On appeal, complainant also contends that he was not aware of the
45-day time limit to contact an EEO Counselor and he timely contacted
an EEO Counselor after he was informed of the time limit from his EEO
representative. The Commission has held that constructive knowledge will
be imputed to an employee when an employer has fulfilled its obligation
of informing employees of their rights and obligations under Title VII.
Thompson v. Department of the Army, EEOC Request 05910474 (September
12, 1991). However, the record is devoid of any evidence as to whether
complainant had constructive notice of the time limit (e.g., through
the agency's posting of EEO information including the requisite time
limit to contact an EEO Counselor). The Commission shall remand the
matter so that the agency may address whether complainant had actual or
constructive knowledge of the time limit for contacting an EEO Counselor.
Accordingly, the agency's final decision is hereby VACATED, and the
complaint is REMANDED to the agency for further processing in accordance
with this decision and applicable regulations
ORDER
The agency, within thirty (30) calendar days of the date this decision
becomes final, is ordered to investigate whether complainant had actual
or constructive knowledge of the requisite time limit to timely contact
an EEO Counselor. Specifically, the agency shall include in the record a
copy of any related evidence as to whether EEO information was on display,
or was in some other manner provided to complainant, and whether that
information specifically referred to the time limit for contacting an
EEO Counselor. The agency shall gather any other evidence necessary to
determine when complainant learned of the time limit for contacting an
EEO Counselor. Based on the foregoing information, the agency, within
thirty (30) days of the date this decision becomes final, shall issue
a new decision or notice of acceptance of the complaint.
A copy of the new agency decision or notice of acceptance of the complaint
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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 (M0701)
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 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 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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 5, 2003
__________________
Date