0120141071
05-23-2014
Complainant, v. Chuck Hagel, Secretary, Department of Defense (Defense Logistics Agency), Agency.
Complainant,
v.
Chuck Hagel,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.
Appeal No. 0120141071
Agency No. DLAN-13-0297
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated December 20, 2013, dismissing a formal complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
During the period at issue, Complainant worked as an Office Automation Clerk at the Agency's Distribution Susquehanna in New Cumberland, Pennsylvania.
The record reflects that Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. Subsequently, Complainant filed the instant formal complaint on December 6, 2013. Therein, Complainant alleged that the Agency subjected him to discrimination on the bases of color and disability when:
on February 20, 2013, his supervisor asked him to roll his chair to the door when the doorbell rang, which exacerbated his medical condition.
On December 20, 2013, the Agency issued the instant final decision. Therein, the Agency dismissed the formal complaint pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds of untimely EEO Counselor contact. The Agency determined that the alleged discriminatory event occurred on February 20, 2013, but that Complainant did not initiate contact with an EEO Counselor until August 25, 2013, which the Agency found to be beyond the forty-five limitation period.
Further, the Agency noted in his formal complaint, Complainant stated that the most recent discriminatory event as February 20, 2013 but did not indicate the date when he first initiated EEO Counselor contact. The Agency further noted that in the EEO Counselor's Report, the EEO Counselor stated that Complainant initiated EEO contact on August 25, 2013. The Agency also noted that when the EEO Counselor asked Complainant why it took him more than 45 days to initiate EEO contact, Complainant explained that he was off work due to an on-the-job injury during the July and August 2013 time period.
Complainant, on appeal, argues that the Agency erred in dismissing the formal complaint on the grounds of untimely EEO Counselor contact. For instance, Complainant stated that he initiated EEO Counselor contact on March 5, 2013, not August 25, 2013. In support of its assertions, Complainant submitted a copy of his union representative's email dated March 4, 2013, to several Agency officials. Therein, the representative stated "Tuesday March 5, 2013 I have 0700 and 0900 hrs mediations. I will commit to the meeting for [Complainant], just in case I run a little late I am giving advance notification of prior scheduled meetings."
The record reflects that at the bottom of the representative's March 4, 2013 email, Complainant wrote the following statement "this is the e-mail we where to have the meeting with EEO on March-5-2013 with [Agency official] management canceled meeting. The initial contact date with EEO staff 8-25-13 is not right at all this e-mail proves me right."
The instant appeal followed.
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 personnel action, within forty-five (45) days of the effective date of the action. Failure to bring an alleged discriminatory matter to the attention of the EEO Counselor in a timely manner pursuant to regulation, and absent circumstances requiring extension, see 29 C.F.R. � 1614.105(a)(2) mandates dismissal of complaints for untimeliness. 29 C.F.R. � 1614.107(a)(2).
We find that the Agency improperly dismissed Complainant's formal complaint for untimely EEO Counselor contact. We are not persuaded by the Agency's assertion that Complainant initiated EEO contact on August 25, 2013. Specifically, we note that Complainant, on appeal, states that he initiated EEO contact on March 5, 2013, not August 25, 2013. We also note that the record contains a copy of the EEO Specialist's email correspondence dated January 14, 2014 to an Agency official. Therein, the EEO Specialist stated that Complainant "did make EEO contact on February 27, 2013" concerning his claim. Moreover, we find nothing in the record reflecting a finding that Complainant may have abandoned his claim when making these initial EEO contacts in late February or early March 2013, and that it was only resurrected when he again contacted an EEO Counselor in August 2013.
The Agency's final decision dismissing the formal complaint on the grounds of untimely EEO Counselor contact is REVERSED. The formal complaint is REMANDED to the Agency 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
May 23, 2014
__________________
Date
2
0120141071
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120141071
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