01A23475
12-16-2003
Richard S. Hall v. Department of the Army
01A23475
December 16, 2003
.
Richard S. Hall,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A23475
Agency No. ABANFO9905J0450
Hearing No. 100-AO-7633X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant, a Planner Estimator with the agency, filed a formal
complaint alleging that he was discriminated against because of his race
(African American) and color (Black), and retaliated against based
on prior EEO activity when (1a) on March 11, 1999, he was placed on
a performance improvement plan not to exceed sixty days; (1b) and on
March 31, 1999, he received a performance evaluation of �Fair�; (2)
on March 11, 1999, he was issued a notice of leave restriction; and
(3) on April 21, 1999, he was denied the opportunity to compete for
a promotion to the position of Supervisory Planner Estimator because
his application was found to be untimely. After the complaint was
investigated and complainant was issued the report of investigation,
complainant requested a hearing before an EEOC Administrative Judge
(AJ). The AJ held a hearing on the merits of the complaint and issued
a decision finding that there was insufficient evidence to support a
finding of discrimination on any of the bases alleged.<1>
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the final agency order because
the Administrative Judge's ultimate finding, that unlawful employment
discrimination was not proven by a preponderance of the evidence, is
supported by the record.<2>
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 (S0900)
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. 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 (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
December 16, 2003
__________________
Date
1Complainant withdrew his allegation of
physical disability discrimination.
2The agency challenged the timeliness of complainant's appeal. EEOC
Regulation 29 C.F.R. � 1614.402(b), provides that when a complainant
designates an attorney as his representative, the 30-day time period
shall be calculated from the receipt of the required document by the
attorney. The evidence of record reveals that the agency was on notice
that complainant was represented by an attorney; however, there was no
evidence that complainant's attorney received the final agency decision.
Because the time limit for filing the appeal was not triggered until
complainant's attorney received the final agency decision and that date
is not contained in the record, there is insufficient evidence to find
complainant's appeal untimely. Therefore, the Commission has addressed
the merits of complainant's appeal. See Roublow v. Department of Veterans
Affairs, RTR No. 05A01106 (January 3, 2003).