01991255
02-23-2000
Peter A. Panos v. Department of the Navy
01991255
February 23, 2000
Peter A. Panos, )
Complainant, )
)
v. ) Appeal No. 01991255
) Agency No. DON 98-00210-003
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
____________________________________)
DECISION
On November 25, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) pertaining to his
complaint of unlawful employment discrimination in violation of the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. � 621
et seq.<1>
The record shows that complainant sought EEO counseling on September 9,
1997, alleging that he had been discriminated against on the basis of
age when on July 7, 1997 his hours were decreased and a younger man was
hired to work complainant's usual hours. Complainant further alleges
on July 7, 1997, his supervisor ordered him to leave the premises and
fired him for insubordination. The record also indicates that on July
12, 1997, complainant filed a grievance concerning his allegations.
The agency found that by contacting an EEO Counselor on September 9,
1997, complainant had failed to seek counseling within the 45-day time
frame provided by EEOC Regulations. The FAD dismissed the complaint
pursuant to Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified as
29 C.F.R. �1614.107(a)(2)).
Based on our review of the record, and previous Commission's decisions
on this issue, we hold that complainant's EEO Counselor contact on
September 9, 1997, was untimely. The Commission has held that where
there is an issue of timeliness, the agency always bears the burden of
obtaining sufficient information to support a reasoned determination
as to timeliness. See Williams v. Department of Defense, EEOC Request
No. 05920506 (August 25, 1992). On appeal complainant has failed to
provide any persuasive evidence to justify his delay in seeking counselor
contact. Accordingly, the agency has met its burden concerning the
issue of untimeliness. Moreover, the record shows that complainant
filed a grievance before he sought EEO counseling. The Commission
has specifically held that an internal appeal of an agency's adverse
action and/or the filing of a grievance do not toll the running of the
time limit to contact an EEO Counselor. See Hosford v. Department of
Veterans Affairs, EEOC Request No. 05890038 (June 9, 1989). Accordingly,
the agency's decision dismissing the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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. 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:
February 23, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.