01A20408_r
04-25-2002
Mark A. Hunter, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Mark A. Hunter v. Department of Veterans Affairs
01A20408
April 25, 2002
.
Mark A. Hunter,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A20408
Agency No. 200P-2829
DECISION
Complainant filed an appeal with this Commission from an agency decision
pertaining to his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. The Commission accepts the appeal
in accordance with 29 C.F.R. � 1614.405.
On March 26, 2001, complainant contacted the EEO office claiming that he
was discriminated against when he received a letter terminating him during
his probationary period, effective April 6, 2001. Informal efforts to
resolve complainant's concerns were unsuccessful. Subsequently, on May
14, 2001, complainant filed a formal complaint based on reprisal for
prior protected activity.<1>
On July 26, 2001, the agency issued a decision dismissing the complaint
pursuant to 29 C.F.R. � 1614.107(a)(1) and (a)(6). Specifically, the
agency found that while complainant based his complaint on reprisal
he did not participate in prior protected EEO activity or oppose a
discriminatory practice. During his discussions with the EEO Counselor,
complainant indicated that he was retaliated against after he contacted
the EEO Manager and told him that agency officials were out to get him
and wanted to fire him. The agency reasoned that although complainant
"raised a general inference of unfairness" in his conversations with the
EEO Manager, he did not communicate a belief that any of the agency's
actions were motivated by discrimination. Therefore, the agency concluded
that complainant failed to state a claim of discrimination based on
reprisal. Additionally, the agency noted that while the EEO Counselor
advised complainant that he was obligated to keep the agency apprized
of his current address, he failed to do so. Consequently, the agency's
attempts to serve complainant with two documents were unsuccessful.
Since the agency was unable to ascertain complainant's present location,
despite its efforts, the complaint was also dismissed pursuant to 29
C.F.R. � 1614.107(a)(6).
The regulation set forth at 29 C.F.R. � 1614.107(a)(6) provides, that
an agency shall dismiss a complaint where the complainant cannot be
located, provided that reasonable efforts have been made to locate the
complainant and he has not responded within fifteen days to a notice of
proposed dismissal sent to his last known address.
Review of the record reveals that the agency made several attempts
to contact complainant at his address and phone number of record.
Documents were sent to the address contained in the formal complaint and
Counselor's Report, via regular mail and returned unclaimed. A second
attempt to reach complainant was made through Fed Ex. The driver
was told that complainant no longer lived at that address. Fed Ex
also purportedly tried to call complainant but received no response.
Following the failed deliveries, the ORM (Office of Resolution Management)
Intake Specialist stated that she tried to call complainant, at the phone
number he provided in his formal complaint, on July 19, 2001 and again
on July 24, 2001. In both instances she heard a recording indicating
that the phone number was disconnected. Finally, the Intake Specialist
stated she called the local post office to find out if a change of
address notice had been received from complainant. The post office,
according to the Intake Specialist, was unable to provide her with the
information due to privacy laws.
On appeal, complainant explains that he was unable to respond to
ORM because he was incarcerated from June 10, 2001 until August 27,
2001.<2> However, he does not contend that the agency was aware of his
incarceration or that he provided them with an alternative address.
Complainant also does not challenge the agency's stated attempts at
reaching him. Therefore, since the agency was unable to locate the
complainant, following reasonable efforts to do so, we find the agency
properly dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(6).
Because of our disposition we do not consider whether the complaint was
properly dismissed by the agency on other grounds.
Accordingly, the agency's decision dismissing the complaint was proper
and is hereby AFFIRMED.
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 (S0900)
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. 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
April 25, 2002
__________________
Date
1 In its decision the agency noted that in the formal complaint,
complainant expanded the scope of his claim to include incidents dating
back to November 2000. The agency framed the four incidents as part of
a claim of harassment which culminated in termination.
2 While the record is unclear, it appears that complainant telephoned
ORM on September 17, 2001 and expressed an intent to continue with the
EEO process. Thereafter, a copy of the agency's decision was resent to
complainant at a new address.