01a55495_cmm
07-31-2006
Saeed U. Din, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Saeed U. Din v. Department of the Navy
01A55495
July 31, 2006
.
Saeed U. Din,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A55495
Agency No. DON-04-0023A-001
DECISION
On August 15, 2005, complainant filed a timely appeal from the agency's
final decision, dated August 3, 2005, which dismissed his equal employment
opportunity (EEO) complaint, pursuant to 29 C.F.R. � 1614.107(a)(2), for
untimely EEO Counselor contact. In his complaint, complainant alleged
that he was subjected to discrimination on the bases of national origin
(Pakistan), religion (Islam), disability, and reprisal for prior EEO
activity when he was not selected on one of several Budget Analyst
positions advertised under Vacancy Announcement No. 04FNC-778.
The record discloses that the agency issued Vacancy Announcement
No. 04NC-778 to fill a number of Budget Analyst, GS 5/7/9/11/12, positions
on February 10, 2004, with a closing date of August 10, 2004. It is
undisputed that complainant submitted a timely application in response
to the vacancy announcement, which was received by the agency on April
12, 2004. The record also indicates that complainant submitted a second
application on July 29, 2004. The agency asserts that it made rolling
selections on the applications received, reviewing some applications in
April and making selections in May 2004, and reviewing other applications
and making selections in November 2004. The agency indicates that
complainant's application was reviewed and not rated high enough for
referral to the selecting official.
On October 22, 2004, complainant initiated contact with an agency EEO
Counselor to allege discrimination when he was not selected for one
of the Budget Analyst positions.<1> He filed a formal complaint of
discrimination on March 10, 2005. The complaint was originally accepted
by the agency for investigation, but was subsequently dismissed for
failure to state a claim in the August 3, 2005 final agency decision.
The agency's decision concludes that with regard to the selections made
in May 2004, complainant's October 22, 2004 initial EEO contact was
beyond the forty-five (45) day limitation period. With regard to the
November 2004 selections, the agency contends complainant's October 22,
2004 counselor contact was premature.
The record contains an affidavit from complainant, dated July 12,
2005, apparently collected by the agency when it initially decided to
accept the complaint for investigation. In that affidavit, complainant
avers that he sent in the second application, in July 2004, because the
agency's personnel office advised him in July that they could not locate
his April 2004 application. In that second application, complainant
states he specifically asked the agency to consider him for a Schedule
A appointment based on his disability, in accordance with the agency's
obligations under an Executive Order to promote the hiring of individuals
with disabilities. Complainant also stated that he never received any
written notification from the agency that selections had been made under
the vacancy announcement, but made a number of telephone calls to the
agency's personnel department after the closing date of the vacancy
announcement in August 2004 in an attempt to secure information about
the selections. He said that he believed the latest of such telephone
calls was sometime in October 2004.
Based on the record as presented to the Commission on appeal, including
appellant's affidavit, we conclude that complainant's initial EEO contact
on October 22, 2004 was timely, and the agency erred in dismissing his
complaint. Complainant's sworn statement indicates that he received no
written notifications from the agency about their selection decisions
and that he waited until the closing date of the vacancy announcement
to initiate a number of telephone calls to the agency's personnel
office to find out about the selection decisions. The agency has
provided absolutely no evidence to the contrary. Therefore, we find
that complainant initiated EEO counseling contact in a timely manner
once he reasonably knew that he had not been selected and reasonably
suspected it was because of discrimination.
Accordingly, the agency's final decision dismissing the complaint is
REVERSED and the complaint is REMANDED for processing in accordance with
the Order below.
ORDER (E0900)
The agency is ordered to process the remanded complaint in accordance
with 29 C.F.R. � 1614.108 et seq.. 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 (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
July 31, 2006
__________________
Date
1 We note that the complaint file provided
to the Commission by the agency does not contain a copy of the required
EEO Counselor's Report in this matter.