James W. Clark, Appellant,v.Earl A. Powell III Director, National Gallery of Art, Agency.

Equal Employment Opportunity CommissionJan 28, 1999
01981564 (E.E.O.C. Jan. 28, 1999)

01981564

01-28-1999

James W. Clark, Appellant, v. Earl A. Powell III Director, National Gallery of Art, Agency.


James W. Clark v. National Gallery of Art

01981564

January 28, 1999

James W. Clark, )

Appellant, )

)

v. ) Appeal No. 01981564

) Agency No. 97-10

Earl A. Powell III )

Director, )

National Gallery of Art, )

Agency. )

______________________________)

DECISION

Appellant filed the instant appeal from the agency's decision

dated December 8, 1997 dismissing a portion of appellant's complaint

(allegations 2, 3, and 4) on the grounds that appellant failed to timely

contact an EEO Counselor. The agency accepted a portion of the complaint

(allegations 1 and 5) for investigation.

Aggrieved individuals must contact an EEO Counselor within 45 days of

the alleged discriminatory incident. 29 C.F.R. �1614.105(a)(1).

Allegation 2

The agency defined allegation 2 as alleging that appellant was issued a

new position description. On appeal the agency explains that appellant's

position description was last changed in October 1995 and that as of

February 26, 1998 appellant still had the same position description he had

in October 1995. The agency found and the record shows that appellant

initially contacted an EEO Counselor on July 30, 1997, which was more

than 45 days after he received his "current" position description in

October 1995.

The record shows that appellant is claiming in allegation 1 that he

was removed from his job as Tenant Sweeper Operator on July 28, 1997.

On appeal appellant states that the new position description was issued in

July 1997. The parties disagree as to whether appellant was issued a new

position description in 1997. The Commission finds that the agency has

addressed the merits of appellant's complaint in a procedural decision.

The question of whether appellant was actually given a new position

description is a question that is, in the instant matter, best decided

in a merits decision. Because appellant alleges that the new position

description took effect in July 1997, we find that appellant timely

contacted an EEO Counselor regarding allegation 2.

Allegations 3 and 4

The Commission finds that the agency properly dismissed allegations 3

(not provided training and job opportunities) and 4 (not compensated

for temporary details and special projects) for untimely EEO Counselor

contact pursuant to �1614.107(b). Appellant has not shown that any of the

incidents in allegations 3 and 4 occurred within 45 days of appellant's

initial contact of an EEO Counselor. The Commission finds that appellant

had constructive notice of the time limits for contacting an EEO Counselor

more than 45 days prior to his initial contact of an EEO Counselor.

The agency's decision dismissing allegation 2 is REVERSED and we REMAND

allegation 2 to the agency for further processing in accordance with this

decision and applicable regulations. The agency's decision dismissing

allegations 3 and 4 is AFFIRMED.

ORDER (E1092)

The agency is ORDERED to process the remanded allegations in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received the remanded allegations within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue to

appellant a copy of the investigative file and also shall notify appellant

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 appellant requests a final decision

without a hearing, the agency shall issue a final decision within sixty

(60) days of receipt of appellant's request.

A copy of the agency's letter of acknowledgement to appellant 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 (K0595)

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 appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant 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. �� 1614.408 and 1614.409. 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

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

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 (T0993)

This decision affirms the agency's final decision in part, but it also

requires the agency to continue its administrative processing of a

portion of your complaint. You have the right to file a civil action

in an appropriate United States District Court on both that portion of

your complaint which the Commission has affirmed AND that portion of the

complaint which has been remanded for continued administrative processing.

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 to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 your appeal with the

Commission, until such time as the agency issues its final decision

on your complaint. 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 28, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations