01984439
06-02-1999
Darrel L. Schneider, Appellant, v. Craven H. Crowell, Jr., Chairman, Tennessee Valley Authority, Agency.
Darrel L. Schneider v. Tennessee Valley Authority
01984439
June 2, 1999
Darrel L. Schneider, )
Appellant, )
)
v. ) Appeal No. 01984439
) Agency No. 0403-98078
Craven H. Crowell, Jr., )
Chairman, )
Tennessee Valley Authority, )
Agency. )
_________________________________)
DECISION
Appellant filed the instant appeal from the agency's decision dated
April 13, 1998 dismissing appellant's complaint of age discrimination
(five nonselection allegations) for failure to timely contact an EEO
Counselor.
The agency found that appellant initially contacted an EEO Counselor
on August 7, 1997, but did not pursue EEO counseling at that time.
The agency found that appellant contacted an EEO Counselor on February
24, 1998 at which time he pursued EEO counseling. Appellant argues that
he contacted EEO Counselor A on August 7, 1997, but that EEO Counselor A
discouraged appellant from pursuing EEO counseling by informing appellant
that the chances of appellant prevailing were not good. Appellant argued
that EEO Counselor A informed appellant "that for an age discrimination
case, if [the agency] hired only one applicant who was age 40 or over
we did not have a case."
The Commission finds that even if we used the date of August 7, 1997
as the date of EEO Counselor contact, allegations 1 - 4 were properly
dismissed pursuant to 29 C.F.R. �1614.107(b) for untimely EEO Counselor
contact. The Commission notes that the record shows that appellant was
notified on May 12, 1997 by posting of his nonselection in allegation 4.
The Commission finds that allegations 1 - 4 are not timely under the
continuing violation theory because appellant should have reasonably
suspected discrimination concerning the incidents in allegations 1 -
4 more than 45 days prior to August 7, 1997.
The nonselection in allegation 5 occurred within 45 days of August 7,
1997. Thus, if appellant raised allegation 5 on August 7, 1997 with
an EEO Counselor, but was improperly dissuaded from continuing pursuit
of such counseling, the allegation would be considered timely raised.
The agency has not included in the record a statement from EEO Counselor
A addressing appellant's contention that EEO Counselor A improperly
(even if advertently) discouraged appellant from pursuing EEO counseling.
Therefore, we shall remand allegation 5 so that the agency may include an
affidavit from EEO Counselor A addressing appellant's specific contention
that EEO Counselor A discouraged appellant from seeking EEO counseling.
The agency's decision dismissing allegations 1 - 4 is AFFIRMED.
The agency's decision dismissing allegation 5 is VACATED and we REMAND
allegation 5 to the agency for further processing in accordance with
this decision and applicable regulations.
ORDER
The agency shall supplement the record with a statement from EEO Counselor
A specifically addressing appellant's specific contention that EEO
Counselor A improperly (even if advertently) discouraged appellant from
pursuing EEO counseling. The agency shall redetermine whether appellant
timely contacted an EEO Counselor regarding allegation 5. Within 60
days of the date this decision becomes final the agency shall either
issue a letter to appellant accepting allegation 5 for investigation
or issue a new decision dismissing allegation 5. A copy of the letter
accepting allegation 5 or new decision dismissing allegation 5 must be
sent to the Compliance Officer as referenced herein.
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 (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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 your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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 2, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations