01a03069
03-28-2001
John Surdyk, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Air Force, Agency.
John Surdyk v. Department of the Army
01A03069
03-28-01
.
John Surdyk,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A03069
Agency No. BHBTF09909J0130
DECISION
Complainant filed a timely appeal from the agency's final decision of
February 17, 2000 which dismissed complainant's complaint for untimely EEO
Counselor contact pursuant to 29 C.F.R. � 1614.107 (a)(2). The appeal is
timely filed (see 29 C.F.R. � 1614.402(a)) and is accepted in accordance
with 29 C.F.R. � 1614.405.
The record shows that on May 3, 1999, complainant received a letter
of reprimand (the reprimand) for making a derogatory statement about
a co-worker. In the reprimand, complainant was informed that he had the
right to file a grievance regarding the reprimand. Complainant was also
informed that if he wished to allege illegal discrimination regarding
the reprimand, he should contact an EEO Counselor within the regulatory
timeframes.
On July 21, 1999, complainant filed a grievance regarding the reprimand
which, in part, raised his claims of illegal discrimination. The
grievance was denied in a decision dated August 13, 1999. In the
grievance decision, complainant was informed that the EEO matters raised
in the grievance had a separate review process which was excluded from
the grievance procedure. Complainant was further informed that if he
wished to file an EEO complaint he should contact the EEO office at the
McAlester facility.
On August 25, 1999, complainant contacted the EEO office at McAlester
and on January 10, 2000 filed a formal EEO complaint. On February 17,
2000, the agency issued its final agency decision (FAD) which dismissed
complainant's complaint on the grounds that complainant's EEO contact
of August 25, 1999 was untimely.
On appeal, complainant explains that shortly after receiving the May 3,
1999 reprimand, he timely contacted the agency's Rock Island EEO office.
According to complainant, he spoke with an agency official (the Official)
whom he identifies by name and telephone number. Complainant states
that the Official told him over the telephone that she would mail him
information regarding the counseling process. Complainant states that
he received no information after a week, called the Official back, and
then received the information from the Official. Complainant includes
with his appeal copies of the information received from the Official.
Complainant goes on to explain that he then called the Official back
and informed her that he wanted to file an EEO complaint. According to
complainant, the Official told him that he could not file a grievance and
an EEO complaint and advised him that EEO complaints took a long time to
resolve. Complainant states that, based on the Official's advice and for
other reasons, he decided to file a grievance. Complainant argues that
he only discovered later that the Official's advice and information was
wrong and that he could have filed both a grievance and an EEO complaint
after he received the reprimand.
In rebuttal to complainant's appeal, the agency states that �only
after the grievance was denied on August 13, 1999, did (complainant)
attempt to enter the EEO process.� The agency submits no evidence to
rebut complainant's specific account, discussed above, of his prior EEO
contact with the Rock Island EEO office.
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 45 days of the effective date of the action.
The agency or the Commission shall extend the 45-day time limitation
when the individual shows that he or she was not notified of the time
limits and was not otherwise aware of them, that he or she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he or she was
prevented by circumstances beyond his or her control from contacting
the counselor within the time limits, or for other reasons considered
sufficient by the agency or the Commission. 29 C.F.R. � 1614.105(a)(2).
After carefully reviewing the record, we find that the agency's
final decision should be reversed and that complainant's formal EEO
complainant should be accepted for investigation. As discussed above,
complainant submitted a very fact-specific account of his initial contact
with the Rock Island EEO office that occurred prior to the filing of his
grievance. Complainant also argued that he was misguided by a Rock Island
EEO official regarding the grievance and EEO procedures. The agency, on
the other hand, submits nothing to rebut complainant's account of his
efforts to file an EEO complaint. Accordingly, based on the evidence
submitted by the parties on appeal, and considering the record as a whole,
we find that the agency improperly dismissed complainant's complaint
for failure to contact an EEO Counselor in a timely manner. Therefore,
the FAD is REVERSED and complainant's complaint is REMANDED for further
processing in accordance with the Order below.
ORDER (E0900)
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 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 (K0900)
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)(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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
__03-28-01________________
Date