01984827
06-30-1999
Arthur J. Abell, Appellant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Arthur J. Abell v. Department of the Interior
01984827
June 30, 1999
Arthur J. Abell, )
Appellant, )
) Appeal Nos. 01984827
v. ) 01986140
) Agency Nos. FNP-97-025
Bruce Babbitt, ) FNP-98-089
Secretary, ) FNP-98-090
Department of the Interior, )
Agency. )
)
DECISION
The appellant timely filed appeals with this Commission from final
decisions, dated April 24, 1998, and June 29, 1998, which the agency
issued pursuant to EEOC Regulation 29 C.F.R. �1614.107(b). The Commission
accepts the appellant's appeal in accordance with EEOC Order No. 960,
as amended.
The April 24, 1998 decision dismissed the appellant's November 14, 1996
counseling request on the ground that the appellant failed to discuss the
matter with an EEO counselor after the agency provided the appellant with
a list of counselors to contact. The June 29, 1998 decision dismissed
two complaints, both dated April 6, 1998, for untimely formal complaint
filing.
On appeal, the appellant contends that the agency issued two decisions
dealing with the same matter, agency number FNP-97-025, EEOC appeal number
01984827, and agency number FNP-98-090, EEOC appeal number 01986140.
The appellant also contends that the agency erred when it dismissed
the two complaints for untimely EEO counselor contact. The appellant
represents that he did not read the notice of his right to file a
complaint until March 30, 1998, and then filed his complaint on April
6, 1998. The appellant contends that there should be no time constraints
on him since the agency's retaliation and discrimination are continuing.
He also contends that former employees who have been off the rolls for
some time may not be able to meet some of the time-frames set out in 29
C.F.R. Part 1614.
After a review of the record in these cases, the Commission finds that the
two cases refer to the same non-selection for a GS-341-12 Administrative
Officer position at the Bryce Canyon National Park. The record indicates
that the appellant requested counseling by letter of November 14, 1996,
after receiving a notice that his application could not be considered
for the Bryce Canyon position Administrative Officer position because
he was outside the area of consideration. According to the Counselor's
Report in FNP-98-090, the appellant was not selected for the Bryce
Canyon position under vacancy number BRCA-96-03 because he was not on
the Certificate of Eligibles.
The Commission also finds that the appellant filed only one formal EEO
complaint regarding the Bryce Canyon non-selection, agency complaint
number FNP-98-090. Therefore, the Commission must determine whether
the agency properly dismissed complaint number FNP-98-090 for untimely
filing.
Similarly, the Commission must determine whether the agency properly
dismissed agency complaint number FNP-98-089 (non-selection for a
GS-341-13 Administrative Officer position at Glen Canyon National
Recreation Area under vacancy announcement CPSO-97-13) for untimely
formal complaint filing.
EEOC Regulation 29 C.F.R. �1614.106(b) requires that complainants
file their formal complaints of discrimination within 15 days of their
receipt of a notice of the right to file a discrimination complaint.
The record contains letters, dated March 30, 1998, from the appellant to
the EEO Counselor, wherein he acknowledges that he received the notices
of his right to file formal complaints of discrimination on March
18, 1998. The notices informed the appellant that he was required to
file his formal complaints within 15 calendar days of his receipt of
the notices. The record also demonstrates that the appellant filed
his formal complaints by mail in envelopes postmarked April 7, 1998,
20 days after he received the notices. The appellant has not provided
any persuasive explanation for not timely filing his formal complaints,
especially in light of the fact that he was able to send the EEO counselor
two letters on March 30, 1998, 12 days after his receipt of the notices.
Therefore, the Commission finds that the appellant failed to timely file
formal complaints numbers FNP-98-089 and FNP-98-090.
On appeal, the appellant contends that he should not be bound by time
limits because he no longer is employed by the agency. However, the EEOC
Regulations governing complaints of discrimination by Federal agencies,
29 C.F.R. Part 1614, apply to applicants for employment as well as to
employees. See 29 C.F.R. �1614.103(c). He also contends that his lack
of timeliness should be excused because the agency's discrimination
is continuing. However, the continuing violation theory is used to
determine whether the timeliness of EEO counselor contact, not the
timeliness of formal complaint filing. See also, Sabree v. United
Brotherhood of Carpenters and Joiners Local No. 33, 921 F.2d 396, 402
(1st Cir. 1990) (a knowing plaintiff has an obligation to file promptly
with the EEOC or lose his claim); Roberts v. Gadsden Memorial Hospital,
850 F.2d 1549 (11th Cir. 1988) (per curiam) (a claim arising out of an
injury which is "continuing" only because a plaintiff knowingly fails
to seek relief is exactly the sort of claim that Congress intended to
bar by the limitations period).
As to the agency's April 24, 1998 decision, there is no provision in
29 C.F.R. Part 1614 for dismissing counseling requests. Therefore, the
Commission vacates the agency's April 24, 1998 decision. The Commission
does not remand the matter to the agency for further action because
the matter has been resolved by the Commission's decision on complaint
number FNP-98-090. The Commission advises the agency that it could have
administratively closed the appellant's November 14, 1996 request for
counseling when he did not pursue the matter within a reasonable period
of time after his receipt of the agency's list of counselors.
CONCLUSION
For the reasons stated above, the Commission vacates the agency's April
24, 1998 decision and AFFIRMS the agency's June 29, 1998 decision.
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 (S0993)
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. 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 (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:
June 30, 1999
______________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations