01971958
11-24-1998
Robert J. Zaytsow, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Robert J. Zaytsow v. Department of the Air Force
01971958
November 24, 1998
Robert J. Zaytsow, )
Appellant, )
)
v. ) Appeal No. 01971958
) Agency No. AL900970181
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
_________________________________)
DECISION
Appellant filed the instant appeal from the agency's December 4, 1996
decision dismissing appellant's complaint for failure to timely contact
an EEO Counselor. EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides
that an aggrieved person must contact an EEO Counselor within 45 days
of the matter alleged to be discriminatory.
The complaint concerns allegedly discriminatory appraisals issued
between September 1989 and July 1994 which led to appellant being denied
a competitive promotion. The complaint is based on retaliation and
age discrimination. The Commission finds that appellant should have
reasonably suspected discrimination concerning allegations 1 (age) and
2 (retaliation) in 1994. The agency found and the record shows that
appellant contacted an EEO Counselor on August 13, 1996. It is this
August 13, 1996 contact which led to the instant complaint.
Appellant argues that he contacted an EEO Counselor in April 1994 and was
misled by the EEO Counselor. Appellant argues that the EEO Counselor,
in 1994, informed appellant that appellant could attempt to resolve
the matter with his supervisor or challenge his failure to receive
a noncompetitive promotion with the Office of Personnel Management and
then, if those actions failed, appellant could return to the EEO process.
The agency has not addressed in the December 4, 1996 decision or on
appeal appellant's argument that he contacted an EEO Counselor in April
1994 and was misled by the EEO Counselor. The agency has not submitted an
affidavit from the 1994 EEO Counselor addressing appellant's claim that he
was misled by the EEO Counselor. The Commission shall remand the matter
so the agency can place into the record an affidavit from the 1994 EEO
Counselor and all relevant notes from the 1994 EEO Counselor addressing
the issue of whether appellant timely contacted an EEO Counselor.
The agency's decision dismissing the complaint is VACATED and we REMAND
the complaint to the agency for further processing in accordance with
this decision and applicable regulations.
ORDER
The agency shall supplement the record with:
1. An affidavit from the 1994 EEO Counselor addressing whether appellant
attempted to raise the matters at issue in the instant complaint in
1994 and addressing whether appellant was informed he could attempt to
resolve the matter outside of the EEO process and then later return to
the EEO process
2. All relevant notes from the 1994 EEO Counselor addressing appellant's
contact of an EEO Counselor in 1994.
The agency shall redetermine whether appellant timely contacted an EEO
Counselor. Within 30 days of the date this decision becomes final the
agency shall either issue a letter to appellant accepting the complaint
for investigation or issue a new decision to appellant dismissing the
complaint. A copy of the letter accepting the complaint or a copy of
the new decision dismissing the complaint must be sent to the Compliance
Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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� (Supp. V 1993).
If the appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
November 24, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations