0120071305
04-27-2007
Ernest S. Mapanoo, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Ernest S. Mapanoo,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120071305
Agency No. 200P-0663-2006-102539
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated November 15, 2006, dismissing his formal 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.
On August 8, 2006, complainant filed a formal EEO complaint. Therein,
complainant claimed that he was a victim of unlawful employment
discrimination on the basis of disability when:
on May 11, 2006, he was not selected for the position of Food Service
Worker Supervisor, WS-7408-3, advertised under Vacancy Announcement
No. 06-31.
In its November 15, 2006 final decision, the agency dismissed the
complaint pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds of
untimely EEO Counselor contact. The record reflects that the agency has
provided various conflicting dates for the initial EEO Counselor contact.
The Commission notes, for example, that in its final decision, the agency
provided two separate dates for the initial EEO contact. Specifically,
the agency determined that complainant's initial EEO Counselor contact
occurred on May 31, 2006 and on "June 31," 2006, which it found to be
beyond the 45-day limitation period.1
The agency also dismissed the complaint on the alternative grounds of
untimely filing, pursuant to 29 C.F.R. � 1614.107(a)(2). The agency
determined that complainant received the notice of right to file a formal
complaint (Notice) on July 5, 2006. The agency determined that while the
Notice indicated that he had to file a formal complaint within fifteen
calendar days of its receipt, complainant did not file his complaint until
August 8, 2006, which is beyond the limitation period. Furthermore, the
agency stated that complainant failed to provide sufficient information
to its October 17, 2006 request for additional information concerning
his untimely EEO Counselor contact and untimely filing.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action.
In its October 17, 2006 request for additional information, the agency
stated that complainant did not contact an EEO Counselor until "June 31,"
2006 concerning his May 11, 2006 non-selection; and in its final decision,
the agency stated that complainant did not contact an EEO Counselor
with regard to his May 11, 2006 non-selection until "June 31," 2006,
which was beyond the 45-day limitation period set by the regulations.
However, based on the EEO Counselor's Report in the record, complainant
initiated EEO contact on May 22, 2006. Based on the foregoing, we
find that complainant's EEO Counselor contact was within the 45-day
limitation period set by the regulations. Therefore, we find that the
agency improperly dismissed the complaint on the grounds of untimely
EEO Counselor contact.
Regarding the agency's dismissal of the complaint on the grounds of
untimely filing, we find that, based on a thorough review of the record
and consideration of the arguments on appeal, its dismissal was improper.
The regulation set forth at 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 29 C.F.R. � 1614.106,
which, in turn, requires the filing of a formal complaint within fifteen
(15) days of receiving the notice of the right to do so.
The record in this case contains insufficient evidence reflecting
complainant's receipt of the Notice on July 5, 2006. The record contains
a Federal Express "Track Shipments Detailed Results" print-out, which
indicates a delivery on July 5, 2006 in "Maryville, WA. Left at front
door. Package delivered to recipient address - released authorized"
without any further details of the address. We determine that there is
no evidence, other than this generalized reference to a city and state,
indicating that complainant actually received the Notice. Where, as here,
there is an issue of timeliness, "[a]n 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).
As it is undisputed that complainant filed his formal complaint on August
8, 2006, and there is inadequate evidence of complainant's receipt of
the Notice, we find complainant's formal complaint was timely filed.
Consequently, we find that the agency improperly dismissed the complaint
on the grounds that it was untimely filed.
Finally, we note in its final decision, the agency made a brief reference
to 29 C.F.R. � 1614.107(a)(7) without expressly dismissing the instant
complaint under these grounds. The regulation set forth at 29 C.F.R. �
1614.107(a)(7) provides for the dismissal of a complaint where the agency
has provided the complainant with a written request to provide relevant
information or otherwise proceed with the complaint, and the complainant
has failed to respond to the request within 15 days of its receipt
or the complainant's response does not address the agency's request,
provided that the request included a notice of the proposed dismissal.
We further find that even if the agency did dismiss the instant complaint
on these grounds, we find nothing in the record to support a dismissal
for this reason.
Accordingly, the agency's final decision dismissing complainant's
complaint on the grounds of untimely Counselor contact and untimely
filed is REVERSED. The complaint is REMANDED to the agency for further
processing in accordance with this decision and the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
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 (K0501)
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 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 (M0701)
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), 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 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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 27, 2007
__________________
Date
1 The Commission notes that the month of June only has thirty days.
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0120071305
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120071305
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