01a04668
09-19-2000
Richard Hobbs, Complainant, v. Norman Y. Mineta, Secretary, Department of Commerce, Agency.
Richard Hobbs v. Department of Commerce
01A04668
September 19, 2000
.
Richard Hobbs,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A04668
Agency No. 00-63-00412D
DECISION
The instant matter is being processed pursuant to a Memorandum of
Understanding (MOU) entered into by the agency, the Bureau of the Census,
and the United States Equal Employment Opportunity Commission.<1> The
MOU was entered into in order to process complaints arising from the
2000 Decennial Census more effectively and efficiently.
Pursuant to the MOU, individuals file their complaints directly with
the Commission. The Commission, through its Washington, D.C. Field
Office, then conducts an early assessment of complaints and neutral
evaluation of cases. The Washington, D.C. Field Office of the Commission
establishes a record of the complaint by obtaining an affidavit from the
complainant and by contacting an agency official to obtain the necessary
information on the complaint. Based on the record established by the
Washington, D.C. Field Office, the Washington, D.C. Field Office will:
(1) notify the agency that the individual has elected not to file a
formal complaint; (2) issue a decision dismissing the complaint and
notify the complainant of his or her right to appeal the decision to
the Office of Federal Operations; (3) conduct settlement negotiations;
or (4) notify the complainant that the complaint has been accepted and
forward the complaint to the agency for further investigation.
The Commission's Washington, D.C. Field Office dismissed the instant
complaint for untimely counselor contact. Specifically, the Field
Office found that the incidents alleged occurred in April 1999, but
complainant failed to contact an EEO Counselor until February 8, 2000.
In his complaint, complainant alleged retaliation from the Regional
Director for his comments concerning quotas. Complainant explains that
the Regional Director told subordinates not to hire complainant as the
Local Office Manager. Complainant also contended that his veteran's
status was not considered in a subsequent selection.
On appeal, complainant argues that he did not file after the Regional
Director's �unprofessional conduct� in February 1999, but felt
compelled to file when on November 21, 1999, he discovered that he
should have received a promotion to �AMFO� by virtue of a ten-point
veteran's preference. Complainant argues that the Regional Director
violated veteran's preference laws in not hiring him for the position.
Complainant also contends that he contacted Senator Harry Reid's office on
December 10, 1999, well within forty-five (45) days of November 21, 1999.
The record includes a notice of non-selection, dated October 26, 1999.
In his formal complaint, complainant explains that he received the
letter on November 5, 1999. He contends that on November 21, 1999,
he realized that he was not considered for a separate position, despite
being at the top of the �CERT� list due to his veteran's status.
Complainant must contact an EEO Counselor within 45 days of the date of
the allegedly discriminatory incident. See EEOC Regulation 29 C.F.R. �
1614.105(a)(1). Complaints that fail to comply with this time frame may
be dismissed. See 29 C.F.R. � 1614.107(a)(2). To determine when the
45-day limitation was triggered, the Commission follows a �reasonable
suspicion� standard. See Howard v. Department of the Navy, EEOC Request
No. 05970852 (February 11, 1999).
The Commission has consistently held that a complainant satisfies the
criterion of Counselor contact by contacting an agency official logically
connected with the EEO process, and by exhibiting an intent to begin the
EEO process. See Cox v. Department of Housing and Urban Development,
EEOC Request No. 05980083 (July 30, 1998); Allen v. United States Postal
Service, EEOC Request No. 05950933 (July 9, 1996). There is no evidence
of record that complainant was unaware of the proper procedures for timely
initiating EEO contact. Complainant's contact with his Senator's office
does not constitute EEO contact for purposes of tolling the running of
the applicable time limit. Complainant did not contact an EEO Counselor
until February 8, 2000. Even considering the incident date as November
21, 1999, complainant's counselor contact was untimely. Therefore,
the dismissal was proper.
CONCLUSION
Accordingly, the dismissal is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0800)
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
September 19, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.