01983943
07-06-2000
Thomas F. McLoughlin, Complainant, v. Larry H. Summers, Secretary, Department of the Treasury, Agency.
Thomas F. McLoughlin, )
Complainant, )
)
v. ) Appeal No. 01983943
) Agency No. 98-3090M
Larry H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
______________________________)
DECISION
The Commission finds that the agency's March 17, 1998 decision dismissing
the complaint on the basis of untimely EEO Counselor contact, is
proper, in part, pursuant to the provisions of 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified and hereinafter referred to as 29
C.F.R. �1614.107(a)(2)).<1>
The record shows that on March 17, 1996, complainant was given an
excepted service Veterans Readjustment Act (VRA) appointment to the
position of Customs Inspector, subject to a two-year probationary period.
On December 6, 1996, complainant called in sick. Because complainant
allegedly failed to contact the agency concerning his absence, he was
charged Absent without Leave (AWOL) since December 22, 1996, and was
separated from service effective February 26, 1997.
On February 20, 1997, complainant appealed his removal to the Merit
Systems Protection Board (MSPB). In his appeal, complainant did not
raise any claims concerning discrimination or harassment against him.
On that same date, complainant complained to the agency's Internal Affairs
office about the alleged harassment to which he had been subjected from
October 1996, through December 1996. However, complainant did not raise
the issue of his termination with the Internal Affairs office.
By order dated May 16, 1997, the MSPB dismissed the appeal for lack of
jurisdiction after finding that complainant, who had not completed the
probationary period he was serving under his VRA appointment, failed to
make a nonfrivolous allegation that his separation was based on marital
status or partisan political reasons.
On October 8, 1997, complainant sought EEO counseling alleging that he
had been discriminated against on the bases of sex and religion when
he was subjected to harassment and forced to take a leave of absence
which the agency then used as an excuse to terminate his employment.
The agency issued a final decision dismissing the complaint on
the grounds of untimely EEO counselor contact, after finding that
complainant's October 8, 1997 EEO Counselor contact was well beyond the
45-day time limit provided by EEOC Regulations. The agency also found
that complainant's contact with the Internal Affairs office was not a
complaint of discrimination. Finally, the agency noted that complainant
had constructive knowledge of his EEO rights and applicable time limits
because EEO posters were posted throughout the agency's premises.
The Commission has held that where there is an issue of timeliness, the
agency always bears the burden of obtaining sufficient information to
support a reasoned determination as to timeliness. Williams v. Department
of Defense, EEOC Request No. 05920506 (August 25, 1992).
The record shows that complainant appealed his February 1997 removal by
filing an MSPB appeal on February 20, 1997. The record further shows
that his appeal was dismissed for jurisdictional reasons on May 16, 1997.
EEOC Regulations provide that when a person files a mixed case appeal
with the MSPB instead of a mixed case complaint and the MSPB dismisses
the appeal for jurisdictional reasons, the agency shall promptly notify
the individual in writing of the right to contact an EEO Counselor
within 45 days of receipt of this notice and to file an EEO complaint.
Our regulations further provide that the date on which the person filed
his appeal to the MSPB shall be deemed to be the date of initial EEO
Counselor contact. See Sutton v. USPS, EEOC Appeal No. 01955503 (July
8, 1996).
Based on the foregoing, we find that the date of complainant's MSPB
appeal, February 20, 1997, should be considered as the date of his initial
EEO Counselor contact. Because the removal was effective on February 26,
1997, the contact was well within the 45-day time limit provided by EEOC
Regulations. Accordingly, the agency erred by dismissing the portion
of the complaint which raises the Complainant's termination of employment.
The record shows that on February 20, 1997, complainant contacted the
agency's Internal Affairs office and alleged that he had been subjected to
harassment and offensive conduct from October 1996 through December 1996.
The record shows that complainant's last day of work was sometime before
he called in sick on December 6, 1996. Therefore, he could not have
reasonably been subjected to harassment after that date. The record
further shows that he contacted Internal Affairs on February 20, 1997.
Therefore, even if we accepted complainant's argument that his contact
with Internal Affairs was sufficient to comply with the EEO Counselor
contact requirement, his contact would still be untimely because it did
not take place within 45 days of the alleged harassment. Therefore,
the dismissal of the portion of the complaint which raised the issue of
complainant's harassment was appropriate.
Accordingly, the dismissal of the portion of the complaint which raised
the issue of harassment, on the grounds of untimely EEO counselor contact
was proper and is hereby AFFIRMED. The dismissal of the portion of the
complaint concerning the February 26, 1997 removal was not proper and
is hereby REVERSED. The removal issue is hereby REMANDED for further
processing in accordance with this decision and applicable regulations.
ORDER (E0400)
The agency is ORDERED to process the remanded claim in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (T0400)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
July 6, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
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 EQUAL EMPLOYMENT ASSISTANT 1
On 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.