01984467_r
06-15-1999
Michael E. Donovan, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Michael E. Donovan, )
Appellant, )
)
v. ) Appeal No. 01984467
) Agency No. 980190
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
______________________________)
DECISION
Based on a review of the record, we find that there is insufficient
information in the record to determine whether the agency properly
dismissed one allegation in appellant's complaint, pursuant to EEOC
Regulation 29 U.S.C. �1614.107(b), for failure to initiate contact with
an EEO Counselor in a timely manner. Appellant alleged that he was
subjected to discrimination on the bases of race (White), color (White),
sex (male), and national origin (U.S. born) when:
On September 2, 1997, appellant was not selected for a District Manager
position, GS-1801-15, for which he applied under vacancy announcements
FSIS-M-114(97) and FSIS-M-123(97); and
In March 1997, appellant was not selected for a District Manager
Position, GS-1801-15, for which he applied under vacancy announcement
FSIS-M-71(96).
On February 20, 1998, the agency issued a final decision accepting
allegation (1) for investigation and dismissing allegation (2) pursuant to
29 U.S.C. �1614.107(b), for untimely EEO Counselor contact. Specifically,
the agency determined that appellant's September 5, 1997 initial EEO
Counselor contact occurred more than forty-five (45) days from the date
appellant learned that he was not selected and was, therefore, untimely.
On appeal, appellant contends that he did not initiate contact with an
EEO Counselor after he learned that he was not selected for the first
District Manager Position vacancy because he was told by the selecting
official that he (appellant) should not file an EEO complaint at that time
because he would probably be selected when the position was re-advertised.
Consequently, appellant elected not to file a complaint as he felt it
would jeopardize his chances for selection on the latter position vacancy.
The Commission has previously held that an agency may not dismiss a
complaint based on an appellant's untimeliness, if that untimeliness is
caused by the agency's action in misleading or misinforming the appellant.
See Wilkinson v. United States Postal Service, EEOC Request No. 05950205
(March 25, 1996). See also Elijah v. Department of the Army, EEOC Request
No. 05950632 (March 28, 1996) (if agency officials misled appellant into
waiting to initiate EEO counseling, agency must extend time limit for
contacting EEO Counselor).
However, the Commission has repeatedly held that mere fear of reprisal
is an insufficient justification for extending the time limitation
for contacting an EEO Counselor. See Duncan v. Department of Veterans
Affairs, EEOC Request No. 05970315 (July 10, 1998); Parker v. Department
of Veterans Affairs, EEOC Request No. 05940436 (February 9, 1995); Kovarik
v. Department of Defense, EEOC Request No. 05930898 (December 9, 1993).
In the present case, however, it is unclear from the record whether
appellant was coerced into delaying EEO contact, or whether, upon
his being told of his likely selection when the position was to be
re-advertised, appellant elected not to initiate EEO Counselor contact for
fear that it might affect his chances for selection. The agency did not
address the issue, and appellant's statement on appeal is insufficiently
precise to make this determination.
Accordingly, the agency's final decision dismissing allegation (2) is
hereby VACATED. Allegation (2) is REMANDED to the agency for further
processing in accordance with this decision and the Order below.
ORDER
The agency is ORDERED to take the following actions:
Within fifteen (15) calendar days of the date this decision becomes final,
the agency shall undertake a supplemental investigation to determine
the circumstances surrounding appellant's decision not to initiate EEO
counseling after learning that he was not selected for any of the first
District Manager position vacancies, including, inter alia, a statement
from the identified selecting official regarding what, if anything,
he told appellant about filing an EEO complaint.
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall issue a notice of processing and/or a new FAD regarding
allegation (2).
A copy of the agency's notice of processing and/or new FAD regarding
allegation (2), as well as the documentation or other supporting evidence
must be sent to the Compliance Officer as referenced below.
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. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. 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 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 (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 15, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations