01995626
05-03-2000
Martin Walker, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Martin Walker, )
Complainant, )
)
v. ) Appeal No. 01995626
) Agency No. 5995057
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
____________________________________)
DECISION
Complainant filed the instant appeal from the agency's decision dated
June 16, 1999, dismissing complainant's complaint for failure to timely
contact an EEO Counselor pursuant to the regulation set forth at 64
Fed. Reg. 37,644, 37,656 (to be codified as and hereinafter cited as 29
C.F.R. � 1614.107(a)(2)).<1>
Complainant alleged that he was discriminatorily non-selected for a
position on January 14, 1999. Complainant signed and dated the informal
complaint processing form on March 10, 1999. On appeal, complainant
argues that he contacted EEO Counselor A on February 3, 1999. At this
meeting, complainant states, he discussed the non-selection claim with
EEO Counselor A and expressed an intent to initiate the EEO process.
In response, the agency submitted a letter from the Internal Program
Manager, who states that he spoke with the identified EEO Counselor.
The Manager stated that he verified that on February 3, 1999, complainant
only contacted the Counselor for informational purposes and indicated
that he did not want to file a complaint at the time because he was
afraid it might negatively impact on a job offer he was trying to get in
Washington, D.C. According to the Manager, complainant did not initiate
EEO contact until March 10, 1999.
In rebuttal, complainant states that as a previous EEO Counselor,
he was very aware that a complaint would be dismissed if untimely.
According to complainant, he initiated EEO contact on February 3, 1999,
and only requested that the Counselor delay contacting the management
team so as not to adversely impact his job offer. Complainant states
that the EEO Counselor stated that she would contact the Internal Program
Manager and inform him that the March 10, 1999 contact date was an error.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that a complainant
bring a claim of discrimination to the attention of the Equal
Employment Opportunity Counselor within forty-five (45) days of the
alleged discriminatory event. The Commission has held that in order to
establish EEO Counselor contact, an individual must contact an agency
official logically connected to the EEO process and exhibit an intent
to begin the EEO process. Allen v. United States Postal Service, EEOC
Request No. 05950933 (July 9, 1996). EEO Counselor contact, for purposes
of tolling the time limit, requires at a minimum that the complainant
intend to pursue EEO counseling when he initiates EEO contact. Snyder
v. Department of Defense, EEOC Request No. 05901061 (November 1, 1990).
Given the conflicting evidence of record, we find that this matter
must be remanded to the agency for a supplemental investigation.
Complainant contends that he contacted an EEO Counselor on February 3,
1999, to initiate EEO contact; the Internal Program Manager contends that
complainant's EEO contact on February 3, 1999, was strictly informational
and not to initiate the EEO process. Clearly, a statement from the
identified EEO Counselor would be helpful in resolving this evidentiary
conflict. Therefore, the agency's decision is VACATED and the case is
REMANDED for supplemental investigation in accordance with the following
ORDER and applicable regulations.
ORDER
The agency shall conduct a supplemental investigation regarding
complainant's initial EEO contact. Specifically, the agency shall obtain
a statement from the identified EEO Counselor regarding complainant's
EEO contact of February 3, 1999, i.e., whether that contact was for
informational purposes or to initiate an EEO complaint. The agency
shall supplement the record with any other evidence relevant to the
determination of the timeliness of complainant's EEO contact. Thereafter,
within thirty (30) calendar days of the date this decision becomes final,
the agency shall issue a new final decision or notice of processing.
A copy of the notice of processing or new final decision shall 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 (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
May 3, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On 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.