0120082561_cmm
11-05-2008
Richard L. Brown, Complainant, v. Pete Geren, Secretary, Department of the Air Force, (Air Force National Guard Bureau), Agency.
Richard L. Brown,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Air Force,
(Air Force National Guard Bureau),
Agency.
Appeal No. 0120082561
Agency No. T0795MI0108ROH
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 14, 2008, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
In his complaint filed on November 26, 2007, complainant alleged that
he was subjected to discrimination on the bases of age (53 years old at
time of incident) and reprisal for prior protected EEO activity under
an EEO statute that was unspecified in the record when:
1. On or about August 8, 2001, complainant was reassigned to a lower
grade with no loss of pay or benefits; and
2. On or about August 24, 2001, complainant was notified he would be
terminated from the Michigan Technician Program, effective December 31,
2001.
In its final decision, the agency dismissed the complaint, pursuant to
29 C.F.R. � 1614.107(a)(2), due to the untimely filing of the formal
complaint. The agency provided evidence that complainant received the
notice of right to file a formal complaint by certified mail on October
20, 2007. Although the notice indicated that complainant had to file
a formal complaint within fifteen (15) calendar days of its receipt,
the agency asserts that complainant did not file his formal complaint
until November 26, 2007 (as evidenced by the postmark), which is beyond
the limitation period. Therefore, the agency dismissed the complaint
as untimely. The instant appeal followed.
Complainant asserts that by letter dated November 1, 2008, he requested
an extension to November 30 to "allow [him] proper time to complete
required paperwork." By letter to complainant dated November 6, 2008, the
agency's EEO Manager denied the request for a 30-day extension because he
"cannot find any regulatory guidance that this agency has jurisdiction or
authority to grant, deny or waive any time-lines established by the Equal
Employment Opportunity Commission." Complainant argues on appeal that
his request for an extension was justified by the unusual circumstances
surrounding his complaint that resulted from the agency's actions which
caused significant delays in the processing of his claim.
The record shows that the events forming complainant's claim of
discrimination occurred in August 2001, over seven years ago. In February
2002, complainant filed a previous appeal with this Commission on this
same claim. The Commission remanded the claim back to the agency with
an order for processing. Brown v. Department of the Air Force, EEOC
Appeal No. 01A22198 (March 22, 2004). In January 2005, the Commission
docketed a petition for enforcement of the order in Appeal No. 01A22198.
At that time, complainant asserted that he had not been contacted by the
agency concerning the processing of his claim. In Brown v. Department
of the Air Force, EEOC Petition No. 0420050011 (May 16, 2007), the
Commission concluded the agency had failed to comply with its earlier
order and issued a new order requiring the agency to provide complainant
with EEO counseling on his complaint and, if after counseling he files a
formal complaint, requiring the agency to process it in accordance with
the regulations at 29 C.F.R. Part 1614.
The record does establish, and complainant does not dispute, that he filed
his formal complaint several weeks beyond the 15-day limitation period.
However, 29 C.F.R. 1614.604(c) provides that all the time limits in
29 C.F.R. Part 1614 "are subject to waiver, estoppel and equitable
tolling." Under the facts of this case, we conclude that waiver of the
time limitation is appropriate. The processing of complainant's claim
has been delayed for years as a result, in large part, of the actions
of the agency. The record further establishes that complainant filed a
written request with the agency for an extension to file his complaint.
Under the circumstances, this request was reasonable and should have
been granted by the agency.
Accordingly, the agency's dismissal of the complaint is REVERSED and the
complaint is REMANDED to the agency for continued processing pursuant
to the following Order.
ORDER (E0408)
The agency is ordered to process the remanded claims in accordance with 29
C.F.R. � 1614.108 et seq. The agency shall acknowledge to the complainant
that it has received the remanded claims 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 (K0408)
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 (M0408)
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 (R0408)
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 (Z0408)
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
November 5, 2008
__________________
Date
2
0120082561
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120082561