01A21615_r
02-27-2003
Robert M. Paitchel, Complainant, v. Stephen A. Perry, Administrator, General Services Administration, Agency.
Robert M. Paitchel v. General Services Administration
01A21615
February 27, 2003
.
Robert M. Paitchel,
Complainant,
v.
Stephen A. Perry,
Administrator,
General Services Administration,
Agency.
Appeal No. 01A21615
Agency No. GSAEEO20010045
DECISION
The EEO Counselor's report indicates that complainant initiated contact
with the agency's EEO Office on April 17, 2001. In a formal EEO complaint
dated June 26, 2001, complainant claimed that he was discriminated
against on the bases of his disabilities (cardiac arrhythmia, depression,
anxiety, Epstein-Barr syndrome, recurring melanomas and melanocytes) and
in reprisal for his previous EEO activity under the Rehabilitation Act.
The agency defined the claims as being that from May 1999 through January
2001, complainant was subjected to a hostile work environment, denied
a within grade increase, denied reasonable accommodations, he did not
receive a performance award, and that the harassment forced him to retire.
By decision dated December 14, 2001, the agency dismissed the complaint
on the grounds that complainant failed to initiate contact with an EEO
Counselor in a timely manner. The agency determined that complainant
initiated EEO contact on April 17, 2001, more than 45 days after the
most recent event of complainant's filing of a disability retirement
application on January 25, 2001. The agency also determined that
complainant failed to file a formal complaint within 15 days of his
final interview.
On appeal, complainant contends that although some of the alleged
incidents occurred before he filed for a disability retirement, his
working conditions and some events continued through June 8, 2001,
his last day of work.
Initially, with regard to the agency's dismissal of the complaint on the
grounds that it was filed in an untimely manner, we note that the agency
has not established when complainant received his notice of right to file
a discrimination complaint. The formal complaint was received by the
agency on July 6, 2001. Therefore, we can not find that the complaint
was untimely filed.
As for the timeliness of complainant's EEO contact, we observe that the
record is incomplete and unclear with regard to the alleged incidents.
We note for example that complainant was apparently denied a within grade
increase in January 2000, but the record indicates that another within
grade increase was denied the following year. It is also not clear
when complainant was denied a performance award. The agency decision
stated that the alleged discrimination occurred from May 1999 through
January 2001. However, complainant claims that some of the incidents
continued through June 8, 2001, his last day of work.
In light of the lack of clarity in the record, we VACATE the agency's
dismissal of the complaint on the grounds of untimely EEO contact and
REMAND this matter for further processing in accordance with this decision
and the Order herein.
ORDER
The agency shall contact complainant with regard to ascertaining the
exact dates of the incidents that are at issue in the instant complaint.
The agency is instructed to request that complainant provide the exact
or approximate dates for each of the claims that has been raised in
the instant complaint. The agency shall send a letter to complainant
requesting such information 15 calendar days after the date this decision
becomes final. The agency shall allot complainant 15 calendar days from
the date that he receives its letter to submit his response. Thereafter,
within 45 days of the date this decision becomes final, the agency shall
issue a notice of acceptance of the complaint or shall issue a final
action with regard to this complaint.
A copy of the agency's new decision or letter of acceptance 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
February 27, 2003
__________________
Date