Complainant,v.Ray Mabus, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Mar 7, 2013

0120121967 (E.E.O.C. Mar. 7, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Ray Mabus,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120121967

Agency No. 12-62204-00229

DECISION

Upon review, the Commission finds that the Agency’s decision dated March 1, 2012,
dismissing Complainant’s complaint due to untimely EEO Counselor contact is improper
pursuant to 29 C.F.R. § 1614.107(a)(2). For the following reasons, we REVERSE the
Agency’s decision.

BACKGROUND

In his complaint, dated January 19, 2012, Complainant, a former Information Systems
Specialist, GS-2210-09, an excepted appointment, Marine Corps Logistics Base Barstow,
alleged discrimination based on race (African American) and color (black) when on June 17,
2011, he was terminated during his excepted appointment for the misuse of a government
vehicle and disobeying travel regulations. Complainant also alleged that the base procedures
for one of the allegations of misuse of government vehicle, i.e., how employees caught
speeding was to be processed, were not followed.

The Agency stated that on June 28, 2011, Complainant appealed his termination to the Merit
Systems Protection Board (MSPB) alleging discrimination based on his marital status, political
affiliation, and race. On August 23, 2011, the MSPB, noting Complainant was in the excepted
appointment at the time of his termination, dismissed the case for lack of jurisdiction. The
Agency indicated that Complainant contacted an EEO Counselor regarding his termination on
October 4, 2011, which was beyond the 45-day time limit after the alleged termination, i.e.,
June 17, 2011. Furthermore, the Agency stated that Complainant’s EEO Counselor contact
was not made within 30 days after his receipt of the MSPB’s decision. Complainant claimed
that he timely contacted an EEO Counselor within 45 days after his receipt of the MSPB’s
decision.
0120121967

2

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination be
brought to the attention of the EEO Counselor within 45 days of the alleged discriminatory
event, or the effective date of an alleged discriminatory personnel action. EEOC Regulation
29 C.F.R. § 1614.302(b) provides that if a person files mixed case appeal with the MSPB
appeal, rather than a mixed case complaint, and the MSPB dismisses the appeal for lack of
jurisdiction, then the agency shall notify the individual of the right to contact an EEO
Counselor within 45 days of receipt of that notice from the agency. The date on which a
person files his or her appeal with the MSPB shall be deemed the date of the initial EEO
Counselor contact. 29 C.F.R. § 1614.302(b).

The record indicates that Complainant was terminated from his excepted appointment position
on June 17, 2011. Complainant appealed his termination based on discrimination to the MSPB
on June 28, 2011. Thus, we deem Complainant’s initial contact of an EEO Counselor,
pursuant to 29 C.F.R. § 1614.302(b), to be timely. Furthermore, on August 23, 2011, the
MSPB dismissed the appeal due to lack of jurisdiction, thereby rendering the case a non-mixed
case. 29 C.F.R. § 1614.302. Complainant contacted an EEO Counselor on October 4, 2011,
which is within 45 days of the issuance of the MSPB dismissal (regardless of if or when
Complainant received the notice from the Agency to contact an EEO Counselor after the
MSPB dismissal) so that contact also complies with 29 C.F.R. § 1614.302(b). Thus, we find
that Complainant timely contacted an EEO Counselor. 29 C.F.R. § 1614.302(b).

CONCLUSION

Accordingly, the Agency’s final decision dismissing Complainant’s complaint due to untimely
EEO Counselor contact is REVERSED. The complaint is REMANDED to the Agency for
further processing in accordance with this decision and the Order herein.

ORDER (E0610)

The Agency is ordered to process the remanded claims in accordance with 29 C.F.R.
§1614.108. The Agency shall acknowledge to the Complainant that it has received the
remanded claims 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 fifty (150) 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.
0120121967

3

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)

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 77960, Washington, DC
20013. 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 (M0610)

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), at 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 77960, Washington, DC 20013. 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.

0120121967

4
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 (R0610)

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 (Z0610)

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 from the Court that the Court appoint an attorney to represent you
and that the Court also 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
with the Court 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

March 7, 2013
Date