01A31148_r
06-15-2004
Milo D. Burroughs, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Milo D. Burroughs v. Department of Transportation
01A31148
June 15, 2004
.
Milo D. Burroughs,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A31148
Agency No. DOT-6-03-6002
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated November 22, 2002, dismissing his complaint of unlawful
employment discrimination. Complainant alleged that he was subjected to
discrimination on the basis of age when, on April 25, 2002, he learned
that he was not selected for one position of Aerospace Engineer at the
FG-13 level, announced under Vacancy Announcement ANM-AIR-02-160S-62379,
and three positions of Aerospace Engineer at the FG-14 level under
Vacancy Announcement Numbers ANM-AIR-02-1122-61737, ANM-AIR-02-111-62635
and ANM-AIR-02-113-62098.
The record reveals that on August 7, 2002, complainant filed an
appeal with the Merit Systems Protection Board (MSPB) concerning his
nonselections for the four positions referenced above which occurred
on April 25, 2002. In an initial decision issued on September 6, 2002,
the MSPB dismissed complainant's appeal for lack of jurisdiction (MSPB
Docket No. SE-3443-02-0336-I-1).
Thereafter, on September 30, 2002, complainant contacted an EEO Counselor
regarding his nonselections and filed a formal complaint on October
11, 2002.
In its final decision, the agency dismissed complainant's complaint
pursuant to EEOC Regulation 29 C.F.R. � 1614.107(a)(2) on the grounds
that he failed to timely contact an EEO Counselor.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires complaints of
discrimination to be brought to the attention of the EEO Counselor within
forty-five (45) days of the date of the claimed discriminatory matter,
or, in the case of a personnel action, within forty-five (45) days of
the effective date of the action. The Commission's regulations, however,
provide that the time limit will be extended when the complainant shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not
have known that the discriminatory matter or personnel action occurred,
that despite due diligence he or she was prevented by circumstances
beyond his or her control from contacting the counselor within the time
limits, or for other reasons considered sufficient by the agency or the
Commission. See 29 C.F.R. � 1614.105(a)(2).
The record discloses that complainant initiated contact with an EEO
Counselor on August 7, 2002. See 29 C.F.R. � 1614.302(b). On appeal,
complainant argues that he was not aware of the regulatory forty-five (45)
day limitation period until he talked to the agency's Internal Program
Manager of the Civil Rights Office on September 13, 2002. In response to
complainant's statement, the agency stated that, although complainant was
not an agency employee at the time of the alleged discriminatory event,
complainant had access to the internet where the agency has clearly stated
that the allegations of discrimination must be raised within 45 days.
A copy of the agency's internet/web page for the Office of Civil Rights
referencing the 45-day time limit was provided by the agency on appeal.
There is no evidence, however, that the internet information was available
via the internet at the time of complainant's alleged nonselections.
Therefore, we find that the agency failed to supply evidence that
complainant had either actual or constructive knowledge of the time
limits for initiating the EEO process.
Accordingly, the agency's final decision dismissing the complaint is
REVERSED and we REMAND the complaint to the agency for further processing
pursuant to the Order herein.
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 (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
June 15, 2004
__________________
Date