0120090469
08-31-2009
Rodney K. Tadlock, Complainant, v. Ray LaHood, Secretary, Department of Transportation, Agency.
Rodney K. Tadlock,
Complainant,
v.
Ray LaHood,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120090469
Agency No. 2008-21790-FAA-04
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated October 2, 2008, dismissing the first claim of his
complaint of unlawful employment discrimination in violation of the
Rehabilitation Act of 1973, 29 U.S.C. � 791 et seq.
In his complaint, complainant, who was employed as a Air Traffic Control
Specialist, Certified Professional Controller, at the Kansas City Air
Route Traffic Control Center in Olathe, Kansas, claimed that he was
discriminated against on the basis of reprisal for his prior EEO activity
under the Rehabilitation Act when:
1. On October 17, 2007, he was denied his request to work the 6:00
a.m. shift.
2. On November 19, 2007, he received a request from ACE-300 for numerous
medical documents.
3. He felt forced to retire; his retirement was effective on December 28,
2007.
The agency dismissed claim (1) pursuant to 29 C.F.R. � 1614.107(a)(2)
on the grounds of untimely contact of an EEO Counselor. The agency
determined that complainant initiated contact with an EEO Counselor on
December 3, 2007, 47 days after the denial of a shift change on October
17, 2007, and two days after the expiration of the 45-day limitation
period for contacting an EEO Counselor. The agency determined with
regard to claims 2-3 that no discrimination occurred. The agency noted
that claim (3) is a constructive discharge allegation and thus a mixed
case claim. The agency informed complainant that his appeal rights for
claims 2-3 were with the Merit Systems Protection Board.
On appeal, complainant states he is only appealing claim (1) to the EEOC.
Complainant contends that his initial contact of an EEO Counselor was
timely. Complainant states that he initially contacted an EEO Counselor
on November 30, 2007, with regard to the denial of his request for
a shift change on October 17, 2007. Complainant further claims that
even assuming the agency's stated contact date of December 3, 2007,
is correct, that date falls within the 45-day limitation period since
the 45th day fell on a weekend, and therefore he had until the following
Monday to initiate EEO counseling. According to complainant, he spoke
with an EEO Counselor on Friday November 30, 2007, who took note of his
reprisal claims and told him that he needed to talk to another person
who was not at work that day. Complainant maintains that the agency
failed to make a proper inquiry as to his alleged untimely EEO contact.
EEOC Regulation 29 C.F.R. � 1614.604(d) provides that the first day
counted shall be the day after the event from which the time period
begins to run and the last day of the period shall be included, unless
it falls on a Saturday, Sunday or Federal holiday, in which case the
period shall be extended to include the next business day.
Upon review of the record, we observe that even if the agency is correct
that complainant's initial EEO contact occurred on December 3, 2007,
rather than November 30, 2007, that contact is timely since the 45th day
of the limitation period was Saturday, December 1, 2007. As a result,
the limitation period was extended to Monday, December 3, 2007, and
contact of an EEO Counselor on that date (at the latest) was timely.
Accordingly, we find that complainant initiated contact with an EEO
Counselor in a timely manner with regard to claim (1).
Although the agency appeared to also address claim (1) on the merits,
there is no indication or claim by the agency that complainant was
given his right to request a hearing before an EEOC Administrative
Judge, so such consideration of the merits is premature and improper.
Complainant's request for attorney's fees is also premature, because he
is not yet a prevailing party on the merits of the discrimination claim.
CONCLUSION
The agency's final action with regard to the dismissal of claim (1) on
the grounds of untimely EEO contact is REVERSED. This claim is REMANDED
to the agency for further processing pursuant to the Order herein.
ORDER (E0408)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. �1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim 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 (K1208)
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 (M1208)
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 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 (R0408)
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 (Z1008)
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
August 31, 2009
__________________
Date
2
0120090469
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120090469