0120120599
03-21-2012
Victor Mendoza, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Victor Mendoza,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120120599
Agency No. ARCCAD11AUG03513
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated September 23, 2011, dismissing his complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a Materials Expediter at the Agency’s Depot facility in
Corpus Christi, Texas. The record shows that Complainant applied for
a Production Controller position. Complainant indicated that he was
scheduled for an interview for the position on May 4, 2011. Subsequently,
Complainant took a leave of absence from on or about May 23, 2011, and
did not return until August 1, 2011. He learned shortly there after
via email that he was not selected for the position.
On August 22, 2011, Complainant contacted the EEO Office regarding
the non-selection. When the matter could not be resolved informally,
Complainant was issued a Notice of Right to File a Formal Complaint.
On September 13, 2011, Complainant filed a formal complaint alleging
that the Agency subjected him to discrimination on the bases of age
(54) and reprisal for prior protected EEO activity under Title VII of
the Civil Rights Act of 1964 and the Age Discrimination in Employment
Act of 1967 when, he learned he was not selected for the Production
Controller position.
The Agency dismissed the complaint. The Agency noted that Complainant was
emailed about the Agency’s decision not to hire him on May 26, 2011.
The Agency indicated that Complainant was made aware of the decision on
May 26, 2011, but failed to make contact with the EEO Counselor beyond
the 45 day time limit. Therefore, the Agency dismissed the complaint
for untimely EEO Counselor contact pursuant to 29 C.F.R. §1614.107(a)(2).
Complainant appealed. On appeal, Complainant indicated that he had
been on leave when the email was sent to him. As such, he did not
receive notice until he returned in August 2011. He contacted the
EEO Counselor on August 22, 2011, well within 45 days of learning of
the selection decision. The Agency asserted that the email sent to
Complainant on May 26, 2011, was sent a 6:48 a.m. Further, the Agency
noted that Complainant had reported to work for one hour on May 26,
2011, and should have seen his email. As such, the Agency claimed
that Complainant was placed on notice of the non-selection in May,
not August 2011. Accordingly, the Agency requests that the Commission
affirm its decision to dismiss the complaint at hand.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in §1614.105, §1614.106 and
§1614.204(c), unless the agency extends the time limits in accordance
with §1614.604(c).
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 or, in the case of
a personnel action, within 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the agency or the
Commission to extend the time limit if the complainant can establish that
complainant was not aware of the time limit, that complainant did not
know and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence complainant was
prevented by circumstances beyond (his or her) control from contacting
the EEO Counselor within the time limit, or for other reasons considered
sufficient by the agency or Commission.
Upon review of the record, we find that the Agency correctly noted
that an email was sent to Complainant on May 26, 2011, regarding the
Agency’s selection for the Production Controller position. However,
the Agency did not have any evidence that Complainant opened the email on
May 26, 2011. We note that the Agency provided evidence that Complainant
reported to work for one hour on May 26, 2011, however it did not show
that Complainant opened the email. Complainant stated on appeal that he
did not get the email upon his return from leave status in August 2011.
In addition, the Counselor’s Report shows that Complainant told the EEO
Counselor that he did not learn of the selection until August 2011. Based
on the totality of the record, the Commission finds that Complainant was
away from the office but for one hour on May 26, 2011, from May 23, 2011
through August 1, 2011. Although the Agency believed that Complainant
could have read the email regarding the non-selection during the hour he
was in the office on May 26, 2011, we find that the Agency has not shown
this to be the case. Further, Complainant has clearly indicated that
he did not see the email regarding the Production Controller selection
until after August 1, 2011. Therefore, Complainant’s contact on August
22, 2011, was well within 45 calendar days. Accordingly, we find that
Agency’s dismissal was not appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we REVERSE the
Agency’s final decision and REMAND the matter for further processing
in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with
29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant
that it has received the remanded claims 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 (K0610)
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 (M0610)
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), at 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 (R0610)
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 (Z0610)
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
March 21, 2012
__________________
Date
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0120120599
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120120599