01A42851_r
06-30-2004
Donald R. Barnard, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Donald R. Barnard v. U.S. Department of Agriculture
01A42851
June 30, 2004
.
Donald R. Barnard,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A42851
Agency No. 030331
DECISION
Complainant appeals to the Commission from the agency's November 20,
2003 decision dismissing his complaint for untimely EEO Counselor
contact pursuant to 29 C.F.R. � 1614.107(a)(2). Complainant alleges
discrimination on the bases of age, race, and reprisal when he was
reassigned to a non-supervisory position effective December 15, 2002.
The agency dismissed complainant's complaint finding that complainant's
January 31, 2003 EEO Counselor contact was beyond the 45-day limitation
period. On appeal, complainant argues that he was not aware of the
45-day limitation period. There is no evidence whether complainant
had actual or constructive knowledge of the limitation period at the
time of the alleged incident. Based on the foregoing, the record is
insufficient for the Commission to determine whether complainant's EEO
contact was timely. Therefore, the agency is Ordered, as stated below,
to conduct a supplemental investigation concerning the matter.
Accordingly, the agency's final decision is hereby VACATED, and the
complaint is REMANDED to the agency for further processing in accordance
with this decision and applicable regulations.
ORDER
The agency, within thirty (30) calendar days of the date this decision
becomes final, is ORDERED to investigate the issue of whether EEO
information was on display, or was in some other manner provided to
complainant, and whether that information specifically referred to the
time limit for contacting an EEO Counselor. The agency shall gather any
other evidence necessary to determine when complainant learned of the
time limit for contacting an EEO Counselor. The agency, within thirty
(30) days of the date this decision becomes final, shall issue a new
final agency decision dismissing the complaint or a notice accepting
the complaint for processing, after it determines whether complainant
had actual or constructive notice of the time limit for contacting an
EEO Counselor or acted in a timely manner once he obtained actual or
constructive knowledge.
A copy of the new final agency decision and/or notice of processing on
the complaint 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
June 30, 2004
__________________
Date