Tommy Coleman, Complainant,v.Dr. James G. Roche, Secretary, Department of the Air Force, (National Guard Bureau), Agency.

Equal Employment Opportunity CommissionOct 14, 2003
01A31535_r (E.E.O.C. Oct. 14, 2003)

01A31535_r

10-14-2003

Tommy Coleman, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, (National Guard Bureau), Agency.


Tommy Coleman v. Department of the Air Force

01A31535

October 14, 2003

.

Tommy Coleman,

Complainant,

v.

Dr. James G. Roche,

Secretary,

Department of the Air Force,

(National Guard Bureau),

Agency.

Appeal No. 01A31535

Agency No. T-0170-TN-F-01-00-RO

Hearing No. 250-A1-8092X

DECISION

Complainant timely appealed to this Commission from the dismissal of his

employment discrimination complaint. In his complaint, complainant

alleged discrimination on the bases of race (African-American) and

reprisal for prior EEO activity when on November 18, 1999, he was not

selected for a WS-14, Aircraft Mechanic Supervisor position.

On February 9, 2000, the agency accepted complainant's claim for

investigation. At the conclusion of the investigation, complainant

requested a hearing before an EEOC Administrative Judge (AJ) on August

18, 2000. On October 22, 2002, the AJ issued an order for complainant to

show cause on or before November 8, 2002, why the AJ should not dismiss

his complaint for failure to timely contact an EEO Counselor. Therein,

the AJ noted that the alleged incident occurred on November 18, 1999,

but complainant did not contact an EEO Counselor until January 5, 2000.

He further identified the date of complainant's first meeting with

the EEO Counselor as January 12, 2000. On November 19, 2002, noting

that complainant failed to respond to the order, the AJ dismissed the

complaint for untimely counselor contact. The agency took no action

within forty (40) days, and thereby adopted the AJ's decision as its

final agency action. 29 C.F.R. � 1614.109(i).

On appeal, complainant provides a certified receipt card indicating

that he mailed his response to the AJ's Order on November 4, 2002,

and the District Office Hearings Unit received it on November 5, 2002.

Therein, complainant argued that he called the agency's EEO Office to

request EEO Counseling on �several occasions� between November 19 and

December 15, 1999. He contends that he forwarded a written complaint

to the EEO Office on December 15, 1999.<1> Complainant asserts that no

EEO Counselor responded to his request until January 5, 2000, and that

the first appointment occurred on January 12, 2000.

In response to complainant's appeal, the agency denies receipt of any

phone calls from complainant. In an affidavit from complainant's EEO

Counselor, however, the EEO Counselor admits that he was appointed as

complainant's EEO Counselor on December 14, 1999, but was unable to

reach him by telephone until January 5, 2000.

As an initial matter the Commission finds that complainant timely

responded to the AJ's order to show cause and that his arguments against

dismissal should have been considered by the AJ.

Complainant must raise claims of discrimination within forty-five (45)

days of their occurrence. See 29 C.F.R. � 1614.105(a)(1). The agency

may dismiss claims that fail to comply with this time limit. See 29

C.F.R. � 1614.107(a)(2). The time limitation is not triggered until a

complainant reasonably suspects discrimination, but before all the facts

that support a charge of discrimination have become apparent.

The Commission has held that in order to establish EEO Counselor contact,

an individual must contact an agency official logically connected

to the EEO process and exhibit an intent to begin the EEO process.

Allen v. United States Postal Service, EEOC Request No. 05950933 (July

9, 1996). Complainant need not actually speak with the EEO Counselor

in order to initiate EEO Counselor contact. In the present case,

complainant initiated EEO Counselor contact by December 14, 1999, at

the latest. On that date, the agency EEO Office clearly had notice of

complainant's request for counseling because it appointed an EEO Counselor

to complainant's case. Therefore, complainant's contact was within 45

days of the alleged discriminatory non-selection on November 18, 1999.

Complainant's contact of an EEO Counselor was timely and we shall remand

the matter for a hearing before an AJ.

CONCLUSION

The agency's final action is REVERSED and the complaint is REMANDED for

further processing as provided in the Order below.

ORDER

Within fifteen calendar days of the date this decision becomes final,

the agency shall request that the EEOC's Memphis District Office schedule

a hearing. The agency is directed to also submit a copy of the complaint

files to the Hearings Unit of the Memphis District Office within fifteen

calendar days of the date this decision becomes final. The agency shall

provide written notification to the Compliance Officer at the address set

forth below that the request and complaint files have been transmitted

to the Hearings Unit. Thereafter, the Administrative Judge shall issue

a decision on the complaint in accordance with 29 C.F.R. � 1614.109 et

seq., and the agency shall issue a final action in accordance with 29

C.F.R. � 1614.110.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

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 (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 (R0900)

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 (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

October 14, 2003

__________________

Date

1Complainant also asserts that he alleged

breach of settlement agreement in this letter, and never was informed

of where to forward his breach claim pursuant to 29 C.F.R. � 1614.504.

If complainant wishes to pursue his claim of breach, he should write the

agency's EEO Director. The agency shall consider his claim of breach

filed on the date complainant initially notified the EEO Office of the

alleged breach.