01974498
11-24-1998
Victor M. Starr, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Victor M. Starr v. Department of Transportation
01974498
November 24, 1998
Victor M. Starr, )
Appellant, )
)
v. ) Appeal No. 01974498
) Agency No. 1-97-1051
Rodney E. Slater, )
Secretary, )
Department of Transportation )
(Federal Aviation Administration), )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The agency decision was received by appellant
on April 30, 1997. The appeal was postmarked May 15, 1997. Accordingly,
the appeal is timely (see 29 C.F.R. �1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed part of
appellant's complaint.
BACKGROUND
The instant appeal is from a final agency decision dismissing a
portion of appellant's complaint for untimely EEO contact pursuant to
29 C.F.R. �1614.105(a)(1). Although the record is not entirely clear,
the salient facts appear to be that appellant contacted an EEO counselor
on November 6, 1996, alleging allegations of discrimination based on
his religion (Jewish), sex (male), and reprisal (prior EEO activity).
Specifically, appellant alleged that he was harassed and subjected to
reprisal discrimination when the agency deliberately delayed processing
appellant's prior EEO complaint. It also appears that during this initial
EEO contact on November 6, 1996, appellant discussed several additional
incidents of alleged harassment beginning in 1992. Subsequently, on
February 3, 1997, appellant filed a formal complaint with the agency
concerning (1) the alleged incidents of harassment which began in 1992
and (2) the allegedly deliberate delay in processing appellant's prior
EEO complaint.
The agency issued its final decision on April 18, 1997 dismissing
a portion of appellant's complaint as untimely pursuant to 29
C.F.R. �1614.105(a)(1). The agency accepted for investigation
appellant's allegation concerning the delay in the processing of his
prior EEO complaint. The FAD found that appellant's November 1996
EEO contact regarding several alleged incidents of harassment and
discrimination was beyond the forty-five (45) day limit provided in 29
C.F.R. �1614.105(a)(1).
ANALYSIS AND FINDINGS
Upon review, the Commission finds the record in this case to be vague
and unclear. It appears that appellant seeks to challenge the agency's
processing of his prior EEO complaint. Appellant's complaint, however,
also refers to a series of other incidents of alleged discrimination
beginning several years prior to his initial EEO contact. In reading
appellant's complaint it is difficult to distinguish appellant's live
allegations of discrimination from argument or factual background in
support of allegations. The agency was apparently able to delineate
appellant's complaint allegations and accepted for investigation an
allegation concerning the alleged delay in the processing of appellant's
prior EEO complaint. The agency dismissed appellant's remaining
allegations of discrimination as untimely.
Having reviewed the entire record herein, including appellant's appeal
statement, the Commission finds that appellant's complaint must be
remanded for further clarification. EEO Management Directive 110,
Chapter 2, III (October 22, 1992), provides that during the counseling
stage, the EEO Counselor must be certain that complainant's issues are
clearly defined and that the complainant agrees on what issues are to be
the subject of the inquiry and subsequent attempts at resolution. Id.
The EEO counselor is required to perform this duty, i.e., determining
the issue and basis of a complaint, precisely to assist in defining the
issues to be processed once a formal EEO complaint is filed.
CONCLUSION
Accordingly, the agency's decision to dismiss a portion of appellant's
complaint as untimely is VACATED. The complaint is hereby REMANDED
to the agency for further processing in accordance with the ORDER set
forth below.
ORDER
The agency is ORDERED to process appellant's complaint in accordance with
29 C.F.R. Part 1614 and the instructions in this decision. Specifically,
the agency shall schedule in writing a meeting between appellant and an
EEO counselor so an agreement can be reached on the issues in appellant's
complaint. Thereafter, within sixty (60) calendar days of the date this
decision becomes final, the agency shall issue a notice of processing
or new final decision clearly setting forth the issues raised in the
present case. A copy of the agency's notice to appellant arranging a
meeting with an EEO counselor, and a copy of the notice of processing
and/or new final decision must be sent to the Compliance Officer as
referenced below.
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(c) (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. �l6l4.604(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