0120071499
11-08-2007
Brian Keel, Complainant, v. Charles F. Conner, Acting Secretary, Department of Agriculture, Agency.
Brian Keel,
Complainant,
v.
Charles F. Conner,
Acting Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120071499
Agency No. (none specified)
DECISION
Complainant filed a timely appeal with this Commission from the agency's
refusal to acknowledge and process his complaint. The complaint alleged
discrimination in violation of the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. Complaint alleged
that he was subjected to discrimination on the basis of age (born in
1946) when he learned in January 2003 that he was not selected for the
position of Forester, GS-7/9, at the Manchester Ranger Station on the
Green Mountain National Forest, under vacancy announcements NESC-SM-02-27G
& NESC0SM-02D-24.
Complainant initiated contact with an EEO counselor on January 14, 2003.
Despite the expiration of the 30 day counseling period and no counseling
extension agreement, the agency did not issue complainant a notice of
right to file a complaint. Accordingly, by letter dated February 24,
2003, complainant filed his complaint in accordance with 29 C.F.R. �
1614.105(e) and .106(a). By letter to the agency dated February 27,
2003, complainant amended his complaint by adding the basis of age
discrimination.
After receiving the complaint, the agency requested complainant to agree
to extend the counseling period for 60 days. By letter dated March 17,
2003, complainant's counsel declined to agree to an extension. Counsel
asked the agency to acknowledge receipt of the complaint and provide
a copy of the counselor's report. Counsel argued that complainant had
the right to file his complaint after the expiration of the counseling
period, and wrote that he did so.
By letter dated April 11, 2003, the agency acknowledged receiving
complainant's correspondence dated February 24, 2003 and February 27,
2003, but did not acknowledge this correspondence as a complaint.
Instead, it enclosed a notice of right to file a formal complaint.
By letter dated April 22, 2003, counsel for complainant replied that
complainant already filed his complaint on February 24, 2003, as amended
on February 27, 2003, and again argued complainant had a right to do
so since the counseling period expired. Counsel wrote complainant does
not have to file again, and asked the agency to process the complaint.
After getting no reply, counsel for complainant wrote letters to the
agency on September 14, 2004 and May 8, 2006, requesting status. On May
11, 2006, the agency replied that it mailed a notice of right to file a
complaint on April 11, 2003, and averred there was no further contact
by complainant or counsel. Complainant's counsel replied by letter
dated May 19, 2006, that he responded to the notice of right to file a
complaint by correspondence dated April 22, 2003, that he subsequently
requested status, and again asked the agency to process the complaint.
Counsel enclosed copies of some prior correspondence.
On January 31, 2007, counsel for complainant filed an appeal recounting
the above history. Counsel argues that the agency violated Commission
regulations by refusing to process complainant's complaint, and asks
that the Commission order the agency to accept the complaint and process
it. Counsel also asks for relief for the agency violating Commission
regulations. In response to complainant's appeal, the agency states it
has no record of receiving a formal complaint, and asks the Commission
to provide documentation in its possession.
We find that the agency dismissed complainant's complaint by omission.
It refuses to acknowledge complainant's complaint and to process it,
despite repeated notice by complainant's counsel that the complaint
was rightfully filed and repeated requests that it be acknowledged.
As explained to the agency by complainant's counsel, complainant
rightfully filed the complaint after the expiration of the counseling
period. The complaint need not be on an agency form to be acknowledged
and processed.
We also decline to attach laches. Complainant repeatedly asked the
agency to process the complaint to no avail, and contacted the agency
with sufficient frequency as to not abandon his rights. Accordingly, the
agency's dismissal of complainant's complaint by omission is reversed.
We decline to order additional relief for the agency's violation of
Commission regulations. The agency did not violate any Commission order
that it take specific action, and complainant only brought this matter to
our attention in January 2007. However, the lengthy delays caused by the
agency, it must prioritize and expedite the investigation in this case.
ORDER
The agency is ordered to process the complaint claiming that he was
subjected to discrimination based on his age (born in 1946) when he
learned in January 2003 that he was not selected for the position
of Forester, GS-7/9, at the Manchester Ranger Station on the Green
Mountain National Forest, under vacancy announcements NESC-SM-02-27G &
NESC0SM-02D-24 in accordance with 29 C.F.R. � 1614.108. If requested
to do so by the agency, complainant shall provide a copy of all
correspondence in his or his counsel's possession that he submitted to
the Commission in this appeal, with all enclosures. The agency shall
acknowledge to the complainant that it has received the remanded claim
within thirty (30) calendar days of the date this decision becomes final.
The agency shall issue to complainant a copy of the investigative file and
also shall notify complainant of the appropriate rights within one-hundred
(100) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time. If the complainant
requests a final decision without a hearing, the agency shall issue
a final decision within sixty (60) days of receipt of complainant's
request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights 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
November 8, 2007
__________________
Date
2
0120071499
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120071499