01981515
02-24-1999
Paul E. Mann, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Paul E. Mann v. Department of the Army
01981515
February 24, 1999
Paul E. Mann, )
Appellant, )
)
)
v. ) Appeal No. 01981515
) Agency No. BEFLFO9707H0270
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
Initially, we note that although the agency, in its final decision,
stated that allegation #2, concerning the denial of his incentive award,
occurred since November 1994 through June 17, 1997, the record, undisputed
by appellant, clearly indicates that the denial of an award at issue
occurred in November 1994. Thus, we find that the agency should have
defined allegation #2 as whether appellant was discriminated against when
in November 1994, he was denied his incentive award. We, nevertheless,
find that the agency properly dismissed allegation #2, as defined above,
pursuant to 29 C.F.R. �1614.107(b), due to untimely EEO Counselor contact.
Appellant indicated that he unsuccessfully tried to resolve the matter
through agency officials for the past three years since November 1994.
The Commission has held that internal appeal of an agency action does
not toll the running of limitations period. See Hosford v. Veterans
Administration, EEOC Request No. 05890038 (June 9, 1989). The record
indicates that appellant contacted an EEO Counselor with regard to the
subject allegation on June 25, 1997, which was beyond the 45-day time
limit set by the regulations.
In his complaint, appellant alleged that he was subjected to
discrimination based on his race (African-American), color (Black), age
(DOB: 1/8/39), and in reprisal for his union activity, combat veteran
status, and prior EEO activity. The agency, in its final decision,
dismissed the basis of reprisal for appellant's union activity and his
being a combat veteran for failure to state a claim. Upon review,
we find that the basis of reprisal for being a combat veteran is
not covered under the EEOC Regulations. See 29 C.F.R. �1614.103(a).
The Commission finds, however, that the agency improperly dismissed the
basis of reprisal for his union activity for failure to state a claim,
pursuant to 29 C.F.R. �1614.107(a). The record indicates that appellant
previously filed a grievance on June 24, 1997, raising discrimination,
which is covered by the EEOC Regulations. It is noted that the agency,
in its decision, accepted the bases of race, color, age, and retaliation
for prior EEO activity for investigation.
Accordingly, the agency's final decision is MODIFIED as indicated herein.
The basis of reprisal for prior union activity is REMANDED to the agency
for inclusion in the further processing of appellant's complaint in
accordance with this decision and applicable regulations.
ORDER
The agency is ORDERED to include the basis of reprisal for prior union
activity in the further processing of appellant's complaint. Within
fifteen (15) calendar days of the date this decision becomes final,
the agency shall notify appellant that this additional basis is being
included in his complaint. A copy of the agency's notice to appellant
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 (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:
Feb 24, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations