01a00643
03-28-2000
William DiBona, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
William DiBona, )
Complainant, )
)
v. ) Appeal No. 01A00643
) Agency No. 990063
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
____________________________________)
DECISION
On October 26, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) issued on September 7,
1999, pertaining to his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. � 791 et seq.<1> Pursuant to 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified at 29 C.F.R. � 1614.405), the Commission
accepts the complainant's appeal from the agency's final decision in
the above-entitled matter.
ISSUE PRESENTED
The issue presented herein is whether the agency properly dismissed
the present complaint for failure to file the formal complaint within
fifteen days of receiving the notice to go formal.
BACKGROUND
The record reflects, that on June 10, 1998, complainant initiated contact
with an EEO Counselor. During the counseling period, complainant stated
that he was denied leave. Counseling failed, and on July 15, 1998,
complainant received the notice to file a formal complaint. According to
the record, the agency received the formal complaint on October 19, 1998.
On September 7, 1999, the agency issued a final decision dismissing
the present complaint for failure to file the formal complaint within
fifteen days of receiving the notice to go formal. According to the
agency, complainant received the notice to go formal on July 15, 1998,
and complainant filed his formal complaint on October 15, 1998, in
excess of the fifteen day limitations period. The Commission notes,
that the record does not contain any postmark establishing the day,
the formal complaint was mailed.
ANALYSIS AND CONCLUSIONS
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(2)) states, in pertinent part, that an
agency shall dismiss a complaint which fails to comply with the applicable
time limits contained in Fed. Reg. 37,644, 37,656 (1999)(to be codified
and hereinafter referred to as 29 C.F.R. � 1614.106), which, in turn,
requires the filing of a formal complaint within fifteen (15) days of
receiving notice of the right to do so. Furthermore, where, as here,
there is an issue of timeliness, "an agency always bears the burden of
obtaining sufficient information to support a reasoned determination as
to timeliness." Guy, v. Department of Energy, EEOC Request No. 05930703
(January 4, 1994) (quoting Williams v. Department of Defense, EEOC Request
No. 05920506 (August 25, 1992)). In addition, in Ericson v. Department
of the Army, EEOC Request No. 05920623 (January 14, 1993), the Commission
stated that �the agency has the burden of providing evidence and/or proof
to support its final decisions.� See also Gens v. Department of Defense,
EEOC Request No. 05910837 (January 31, 1992).
In the present case, the agency has failed to provide evidence
establishing when complainant did in fact mail the formal complaint.
In failing to provide this information, the Commission cannot determine
whether the formal complaint was untimely filed. Therefore, the
Commission finds that the agency has failed to support its decision.
Accordingly, the agency's final decision dismissing the present complaint
was improper.
CONCLUSION
For the reasons set forth herein, the Commission hereby REVERSES the
agency's final decision dismissing the present complaint for failure
to file the formal complaint in a timely fashion. Accordingly, the
agency is ORDERED to process the present complaint in accordance with
this decision and applicable regulations.
ORDER (E1199)
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 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 an
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R1199)
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:
March 28, 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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant1On 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.