Lawrence E. Burns, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionFeb 10, 2004
01A34140_r (E.E.O.C. Feb. 10, 2004)

01A34140_r

02-10-2004

Lawrence E. Burns, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Lawrence E. Burns v. Department of Veterans Affairs

01A34140

February 10, 2004

.

Lawrence E. Burns,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A34140

Agency No. 200L-0622-2003101385

DECISION

Complainant appeals to the Commission from the agency's May 30, 2003

decision dismissing complainant's complaint. According to the decision,

complainant alleges discrimination on the bases of age and race when he

was not converted to full time and was terminated. The agency dismissed

complainant's claim that he was not converted to full time for untimely

EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2). The agency

dismissed the entire complaint for untimely filing of the formal complaint

pursuant to 29 C.F.R. � 1614.107(a)(2).

With regard to the agency's dismissal for untimely filing of the formal

complaint, we find the agency's decision improper. The agency argues that

complainant received the Notice of Right to File (NORF) a formal complaint

form on March 5, 2003, as evidenced by complainant's signature on the

NORF form. The agency argues that complainant did not file his formal

complaint until March 24, 2003 via facsimile. Complainant argues that he

mailed the complaint via certified mail on March 6, 2003. According to

complainant, the EEO office confirmed receipt of complainant's letter on

March 10, 2003, but indicated that the complaint could not be found.

Complainant then faxed a copy of the complaint on March 24, 2003.

The record contains a complaint dated March 6, 2003, and a certificate

of mailing dated March 6, 2003. Although there is no certified receipt

for the March 6, 2003 mailing, the certificate of mailing is properly

addressed to the agency's Office of Resolution Management. Under the

circumstances, we find complainant's argument to be credible - he mailed

the complaint to the agency on March 6, 2003. Therefore, we find that

and the agency's dismissal of the complaint for untimely filing of the

complaint to be improper.

The Commission now turns to the agency's dismissal for untimely EEO

Counselor contact. With regard to complainant's claim of conversion to

full time, the agency found that the last denial of conversion to full

time was in October 2002. The agency reasoned that even if the denial was

on the last day of the month, October 31, 2002, complainant's January 21,

2003 EEO counselor contact is still beyond the 45-day limitation period.

Although the record contains requests and denials of conversion to full

time, the record does not contain, and complainant presents no evidence,

that any of those denials occurred within 45 days of complainant's EEO

Counselor contact. The Commission finds that complainant should have

reasonably suspected discrimination regarding the conversion denial

claim by, at the latest, October 2002. Finally, complainant on appeal

argues that he "contacted another agency of EEOC and submitted [his]

charge, which was subsequently rejected. . ." Complainant does not

identify which office, or on what date, he contacted a different office.

Complainant does not present adequate justification to warrant extension

of the applicable limitation period. Therefore, we find that the claim

of conversion to full time was properly dismissed pursuant to 29 C.F.R. �

1614.107(a)(2) for untimely EEO Counselor contact.

Although the agency did not dismiss complainant's termination claim for

untimely EEO Counselor contact, the Commission notes that the December

11, 2002 termination is within 45 days of complainant's contact with

the EEO Counselor.

The agency's decision dismissing complainant's claim of denial to convert

to full time is AFFIRMED. The agency's decision dismissing complainant's

claim of termination is REVERSED and we REMAND this claim to the agency

for further processing in accordance with this decision and applicable

regulations.

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 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 (T0900)

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 (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

February 10, 2004

__________________

Date