01976219
10-27-1998
Samuel R. St. John v. Department of the Treasury
01976219
October 27, 1998
Samuel R. St. John, )
Appellant, )
)
v. ) Appeal No. 01976219
) Agency No. 97-1256
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
___________________________________)
DECISION
Appellant filed the instant appeal from the agency's decision dated
July 29, 1997 dismissing a portion of appellant's complaint for failing
to timely contact an EEO Counselor. The dismissed allegations are as
follows:
1. On September 1, 1994 management utilized a flyer depicting the Hispanic
culture in a less than favorable manner to announce a luncheon and a
management official dressed in a Hispanic costume in an effort to look
Mexican.
2. In February 1995 management questioned appellant as to whether
appellant's Union activities would interfere with his regular assigned
duties.
3. In June 1996 appellant was not selected for two supervisory positions.
The agency found, and the EEO Counselor's report shows, that appellant
initially contacted an EEO Counselor concerning the dismissed allegations
on April 21, 1997. EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides
that an aggrieved person must initiate contact with an EEO Counselor
within 45 days of the date of the matter alleged to be discriminatory.
Appellant argues on appeal that he timely contacted the Special Assistant
to the Commissioner regarding the September 1, 1994 incident. Appellant
also states that "in reference to being discriminated against because
I am a disabled Veteran, I have had various meetings these past three
years" with the Special Assistant to the Commissioner. Appellant states
that the Special Assistant to the Commissioner is the Director of EEO
for the Customs Service. Appellant states that the Special Assistant
never advised appellant of his rights.
The agency has not provided an affidavit from the Special Assistant
to the Commissioner addressing whether such meetings with appellant
occurred, when such meetings occurred, and the nature of such meetings.
The Commission finds that such an affidavit is necessary to determine
whether appellant attempted to timely pursue, in the EEO process,
some or all of the dismissed allegations. Therefore, the Commission
shall remand the matter so the agency can supplement the record with an
affidavit from the Special Assistant to the Commissioner.
The agency's decision dismissing a portion of the complaint is VACATED and
we REMAND the dismissed portion of the complaint to the agency for further
processing in accordance with this decision and applicable regulations.
ORDER
The agency shall supplement the record with an affidavit from the Special
Assistant to the Commissioner addressing the following:
1. Whether appellant and the Special Assistant discussed any of the
dismissed matters in the complaint prior to April 21, 1997.
2. The date such conversations occurred.
3. The nature of such conversations.
4. Whether appellant was informed of his EEO rights during such
conversations or as a result of such conversations.
Thereafter the agency shall determine whether the dismissed portion of
the complaint was timely raised with an EEO Counselor. Within 60 days
of the date this decision becomes final the agency shall issue a letter
to appellant accepting the remanded allegations for investigation and/or
issue a new decision dismissing the remanded allegations. A copy of
the agency's letter accepting the remanded allegations and/or a copy
of the new decision dismissing the remanded allegations must be sent to
the Compliance Officer referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
October 27, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations