0120110721
04-15-2011
George B. Gordon, Complainant, v. Gary Locke, Secretary, Department of Commerce, (Bureau of the Census), Agency.
George B. Gordon,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce,
(Bureau of the Census),
Agency.
Appeal No. 0120110721
Agency No. 10-63-02460D
DECISION
Upon review, the Commission finds that the Agency's decision dated
October 14, 2010, dismissing claim (1) in Complainant's complaint due
to untimely EEO Counselor contact is proper but dismissing claim (2)
on the same ground is improper pursuant to 29 C.F.R. � 1614.107(a)(2).
The Agency's decision dismissing the complaint is MODIFIED.
BACKGROUND
In his complaint, Complainant, a former Enumerator, with the Agency's Mesa
Local Census Office, Denver Regional Census Center, alleged discrimination
based on age (over 40) and race (Black),1 when: (1) he was not selected to
be fingerprint supervisor after completing training on April 20, 2010; and
(2) he was placed in a non-work status on May 29, 2010. In its decision,
the Agency stated that Complainant contacted an EEO Counselor with regard
to his complaint on July 16, 2010. Final Agency Decision, at 1, 3, 4.
The record, however, reflects that Complainant contacted an EEO Counselor
with regard to his complaint on June 16, 2010. EEO Counselor's Report,
at 1.
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.
With regard to claim (1), since the alleged nonselection occurred on
April 20, 2010, we find that Complainant's June 16, 2010, EEO Counselor
contact was beyond the 45-day time limit set by the regulations.
Complainant may be arguing on appeal that he attempted to "work out"
the matter before contacting an EEO Counselor. The Commission has held,
however, that an internal appeal of an alleged action does not toll the
running of EEO time limitations. See Hosford v. Veterans Administration,
EEOC Request No. 05890038 (June 9, 1989). On appeal, Complainant fails to
present adequate justification to warrant an extension of the applicable
time limit for contacting an EEO Counselor regarding the subject matter.
Thus, we find that the Agency properly dismissed claim (1) due to untimely
EEO Counselor contact.
With regard to claim (2), we find that Complainant's June 16, 2010, EEO
Counselor contact was within the 45-day time limit after his being placed
into a non-work status on May 29, 2010. Thus, the Agency's dismissal
of claim (2) due to untimely EEO Counselor contact was improper.
CONCLUSION
Accordingly, the Agency's final decision dismissing claim (1) due to
untimely EEO Counselor contact is AFFIRMED. The Agency's final decision
dismissing claim (2) due to untimely EEO Counselor contact is REVERSED and
claim (2) 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 claim in accordance with
29 C.F.R. � 1614.108. 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 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.
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.
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 (T0610)
This decision affirms the Agency's final decision/action 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 within ninety (90) calendar
days from the date that you receive this decision 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. 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 (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
4/15/11
__________________
Date
1 The Agency mistakenly stated that Complainant also alleged sex
discrimination. Complainant did not allege sex discrimination.
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0120110721
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110721