0120102477
09-23-2010
Anthony C. McLean, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Anthony C. McLean,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120102477
Agency No. 5T1L10001
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated May 6, 2010, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
In his complaint, Complainant, a Supply Technician, GS-5, alleged that he Agency subjected him to discrimination on the basis of disability (mild retardation and missing shoulder and arm) when:
1. he was given a letter dated January 29, 2010, that accommodations [which excused him from performing] duty on duty #6 of his Standard Core Personnel Document (position description) were being terminated effective January 31, 2010. Complainant contends that duty #6 was improperly added to his position description. Duty #6 is managing the Quarters Improvement Committee (QIC), taking actions associated with assembling a date for and managing QIC meetings, acting as a recorder at QIC meetings and preparing and distributing minutes, and maintaining and updating the Quarters Improvement Plan (QIP); and1
2. the EEO counselor did not properly frame his complaint.
The Agency dismissed the complaint under 29 C.F.R. � 1614.107(a)(2) on the grounds that it was untimely filed. It reasoned that Complainant received his notice of the right to file an individual complaint (hereinafter "NRF") on March 19, 2010, but did not submit a signed complaint until April 15, 2010, beyond the 15 day time limit. The Notice informed Complainant of the 15 day time limitation, that the complaint must be signed, and gave alternate addresses for filing the complaint. The Agency found that while Complainant mailed a complaint form postmarked March 23, 2010, this did not constitute a filing because the form was not signed or dated. Citing 29 C.F.R. � 1614.106(c), the Agency found that the complaint must contain a signed statement from the person claiming to be aggrieved or that person's attorney, and that he previously filed complaints. The Agency further dismissed claim 2 for alleging dissatisfaction with the EEO process. 29 C.F.R. � 1614.107(a)(8).
CONTENTIONS ON APPEAL
Complainant contends that he completed the complaint form in the counselor's office, and the counselor looked over and took it. He writes that he received the complaint form back from the counselor in April 2010 advising that it was not signed and dated, so he took care of this and sent it back to the Agency with a copy to the counselor. Complainant also discusses claim 2. In opposition to the appeal, the Agency questions Complainant's contention that he completed the complaint form in the EEO office and that it was looked over and taken by the counselor, noting that it was actually mailed to the Agency. The Agency reiterates the findings in its dismissal decision, and cites a supporting case, Rodriquez v. United States Postal Service, EEOC Appeal No. 01A61276 (May 11, 2006).
ANALYSIS AND FINDINGS
In Rodriquez, a complainant submitted a complaint form signed by her non-attorney representative three days after receiving the NRF. The Agency dismissed the complaint. On appeal, the complainant submitted a complaint signed by her. The Commission affirmed the dismissal of the complaint on the grounds that it was untimely filed. In so doing, it declined to treat the first submission of the complaint as a proper filing because it was not signed by the complainant.
In some circumstances the Commission has ruled that prior to refusing to accept the filing of a complaint for not being signed, the Agency should request the complainant to sign the complaint, and then dismiss the complaint if the complainant refuses to do so. Ramsay v. Unites States Postal Service, EEOC Appeal No. 01A43841 (November 22, 2004).
The 15 day time period to file a complaint is subject to waiver, estoppel and equitable tolling. 29 C.F.R. � 1614.604(c). Here, Complainant sent by certified mail to the Agency the completed complaint form, minus his signature, four days after receiving the NRF. The Agency waited until April 6, 2010, to pick up the letter, more than 15 days after the NRF. The unsigned and signed complaints are identical, except for lack of a signature and date. In this case, we find that the Agency should have given Complainant an opportunity to cure the defect of not signing his complaint. While the record shows that Agency officials appear to question the diagnosis that Complainant is mildly retarded, in part because the medical documentation stating such is conclusory, there is medical documentation by a physician diagnosing Complainant with mild mental retardation. Also, the Agency did not submit a statement by the EEO counselor contesting that Complaint completed the complaint form in the counselor's office and showed it to the counselor before submitting it. While we are in no way ruling on the merits of Complainant's complaint, we find that for purposes of determining timeliness of filing the complaint, the record is sufficient to justify an equitable extension of the time limit.
We affirm the dismissal of claim 2 on the grounds that it alleges dissatisfaction with the processing of an EEO claim. We also find that no further action is required, as we have made an independent determination on the framing of Complainant's complaint.
Accordingly, the dismissal of claim 1 is REVERSED, and the dismissal of claim 2 is AFFIRMED.
ORDER
The Agency is ordered to process the claim 1 in accordance with 29 C.F.R. � 1614.108. Claim 1 is whether Complainant was discriminated against based on disability (mild retardation and missing shoulder and arm) when he was given a letter dated January 29, 2010, that accommodations [which excused him from performing] duty on duty #6 of his Standard Core Personnel Document (position description) were to be terminated effective January 31, 2010. Complainant contends that duty #6 was improperly added to his position description. Duty #6 is managing the Quarters Improvement Committee (QIC), taking actions associated with assembling a date for and managing QIC meetings, acting as a recorder at QIC meetings and preparing and distributing minutes, and maintaining and updating the Quarters Improvement Plan (QIP). The Agency shall acknowledge to the Complainant that it has received claim 1 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 (T0610)
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 (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
September 23, 2010
__________________
Date
1 This definition accurately captures claim 1, and varies in some detail from the Agency's framing of claim 1.
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0120102477
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102477