01A34140_r
02-10-2004
Lawrence E. Burns v. Department of Veterans Affairs
01A34140
February 10, 2004
.
Lawrence E. Burns,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A34140
Agency No. 200L-0622-2003101385
DECISION
Complainant appeals to the Commission from the agency's May 30, 2003
decision dismissing complainant's complaint. According to the decision,
complainant alleges discrimination on the bases of age and race when he
was not converted to full time and was terminated. The agency dismissed
complainant's claim that he was not converted to full time for untimely
EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2). The agency
dismissed the entire complaint for untimely filing of the formal complaint
pursuant to 29 C.F.R. � 1614.107(a)(2).
With regard to the agency's dismissal for untimely filing of the formal
complaint, we find the agency's decision improper. The agency argues that
complainant received the Notice of Right to File (NORF) a formal complaint
form on March 5, 2003, as evidenced by complainant's signature on the
NORF form. The agency argues that complainant did not file his formal
complaint until March 24, 2003 via facsimile. Complainant argues that he
mailed the complaint via certified mail on March 6, 2003. According to
complainant, the EEO office confirmed receipt of complainant's letter on
March 10, 2003, but indicated that the complaint could not be found.
Complainant then faxed a copy of the complaint on March 24, 2003.
The record contains a complaint dated March 6, 2003, and a certificate
of mailing dated March 6, 2003. Although there is no certified receipt
for the March 6, 2003 mailing, the certificate of mailing is properly
addressed to the agency's Office of Resolution Management. Under the
circumstances, we find complainant's argument to be credible - he mailed
the complaint to the agency on March 6, 2003. Therefore, we find that
and the agency's dismissal of the complaint for untimely filing of the
complaint to be improper.
The Commission now turns to the agency's dismissal for untimely EEO
Counselor contact. With regard to complainant's claim of conversion to
full time, the agency found that the last denial of conversion to full
time was in October 2002. The agency reasoned that even if the denial was
on the last day of the month, October 31, 2002, complainant's January 21,
2003 EEO counselor contact is still beyond the 45-day limitation period.
Although the record contains requests and denials of conversion to full
time, the record does not contain, and complainant presents no evidence,
that any of those denials occurred within 45 days of complainant's EEO
Counselor contact. The Commission finds that complainant should have
reasonably suspected discrimination regarding the conversion denial
claim by, at the latest, October 2002. Finally, complainant on appeal
argues that he "contacted another agency of EEOC and submitted [his]
charge, which was subsequently rejected. . ." Complainant does not
identify which office, or on what date, he contacted a different office.
Complainant does not present adequate justification to warrant extension
of the applicable limitation period. Therefore, we find that the claim
of conversion to full time was properly dismissed pursuant to 29 C.F.R. �
1614.107(a)(2) for untimely EEO Counselor contact.
Although the agency did not dismiss complainant's termination claim for
untimely EEO Counselor contact, the Commission notes that the December
11, 2002 termination is within 45 days of complainant's contact with
the EEO Counselor.
The agency's decision dismissing complainant's claim of denial to convert
to full time is AFFIRMED. The agency's decision dismissing complainant's
claim of termination is REVERSED and we REMAND this claim to the agency
for further processing in accordance with this decision and applicable
regulations.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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 (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 (T0900)
This decision affirms the agency's final decision/action 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 within ninety (90) calendar
days from the date that you receive this decision 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. 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 (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
February 10, 2004
__________________
Date