0120130452
03-22-2013
Reginald McFadden, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Reginald McFadden,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120130452
Hearing No. 410-2011-00095X
Agency No. ARFTMCPH10MAR01589
DECISION
On October 18, 2012, Complainant timely filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final action dated September 19, 2012, implementing the order of an EEOC Administrative Judge (AJ) dismissing 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Logistics Management Specialist at the Agency's Equipment Readiness Division, FORSCOM G-4, in Fort McPherson, Georgia.
On May 6, 2010, Complainant filed a formal complaint alleging that he was discriminated against based on his race (Black) when in February 2010 he was not selected under vacancy announcement SCDV09875218 for the position of Logistics Management Specialist, GS-0346-13.
After the Agency accepted the complaint and investigated it Complainant requested a hearing before an EEOC AJ. On October 5, 2011, the Agency filed a motion to dismiss with the EEOC AJ. It argued that Complainant failed to timely initiate equal employment opportunity (EEO) counseling. It reasoned that Complainant learned that he was not selected for the position of Logistics Management Specialist on February 12, 2010, but did not initiate EEO counseling until March 30, 2010, one day past the 45 calendar day time limit.
In the EEO counselor's report the counselor indicated that Complainant explained in the pre-complaint intake interview that he delayed EEO contact because he was unaware of the time limit and wanted to allow leadership the opportunity to correct the situation. Citing Commission precedent, the Agency argued in its motion to dismiss that the utilization of Agency procedures does not toll the time limit for contacting an EEO counselor, and this appeared to be the primary reason for Complainant's delay.
On May 15, 2012, the presiding AJ denied the Agency's motion to dismiss.1 Thereafter, on August 30, 2012, a second EEOC AJ issued an order, without referencing the above denial, dismissing Complainant's complaint for failure to timely initiate EEO counseling. The Agency then issued a final order implementing the AJ's dismissal order.
On appeal Complainant argues that he timely initiated EEO counseling or the time limit should be extended. The Agency counters that the complaint was properly dismissed.
ANALYSIS AND FINDINGS
Where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy, v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of Def., EEOC Request No. 05920506 (Aug. 25, 1992)). In addition, in Ericson v. Dep't of the Army, EEOC Request No. 05920623 (Jan. 14, 1993), the Commission stated that "the agency has the burden of providing evidence and/or proof to support its final decisions." See also Gens v. Dep't of Def., EEOC Request No. 05910837 (Jan. 31, 1992).
An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. � 1614.105(a)(1) & .107(a)(2). The time limit to seek EEO counseling shall be extended when an individual shows he was not notified of the time limit and was not otherwise aware of the time limit. 29 C.F.R. � 1614.105(a)(2).
While on appeal the parties put forward various arguments on timeliness, we find we can resolve the matter by applying the above case law and regulation. In his pre-complaint interview Complainant said he was unaware of the time limit to initiate EEO counseling. Nothing in the record contradicts this, or shows he was previously notified of the time limit. Given this, the Agency has not met its burden of showing Complainant failed to timely initiate EEO counseling.
Accordingly, the Agency's final order is REVERSED.
ORDER
The Agency shall submit to the Hearings Unit of the appropriate EEOC Field or District Office a request on behalf of Complainant for a hearing on his complaint. The hearing request must include a brief explanation that it is being made pursuant to this decision, and be accompanied with the complaint file, report of investigation, and hearing record in EEOC hearing no. 410-2011-00095X, and a copy of this decision. The Agency shall copy Complainant and his new attorney on the hearing request. The Agency shall complete the above actions within 30 (thirty) days after this decision becomes final. Thereafter, an AJ shall issue a decision on the complaint in accordance with 29 C.F.R. � 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
A copy of the letter requesting a hearing must be sent to Complainant, his attorney, and the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
March 22, 2013
__________________
Date
1 On appeal the Agency writes that Complainant responded to the Agency's motion to dismiss. Complainant's response is not in the record the Agency provided the Commission, nor is the AJ's denial of Agency's motion to dismiss. Complainant provided a copy of the AJ's denial with his appeal brief.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120130452
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130452