01985813
03-14-2000
David Chan, Complainant, v. Shirley Ann Jackson, Chairman, Nuclear Regulatory Commission Agency.
David Chan v. Nuclear Regulatory Commission
01985813
March 14, 2000
David Chan, )
Complainant, )
)
v. ) Appeal No. 01985813
Shirley Ann Jackson, ) Agency No. NRC-98-03
Chairman, )
Nuclear Regulatory Commission )
Agency. )
____________________________________)
DECISION
On July 14, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on June 29, 1998,
pertaining to his complaint of unlawful employment discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. � 621 et seq. <1> In his complaint, complainant alleged
that he was subjected to discrimination on the basis of age (56) when:
On February 4, 1997, complainant was not selected for a Reactor
Engineer, GC-13 position, under Vacancy Announcement No. 9757004.
The agency dismissed complainant's complaint on the grounds of untimely
EEO Counselor contact. Specifically, the agency claimed that complainant
did not initiate contact with an EEO Counselor until March 23, 1998,
outside the forty-five (45) day limitation period prescribed by EEOC
Regulation 29 C.F.R. � 1614.105(a)(1).
On appeal, the complainant claims that he was not aware of the procedures
for timely contacting an EEO Counselor or filing a formal complaint
until the April 11, 1997 letter from the EEOC. Complainant states
that his April 23, 1997 letter to the Director of the Office of Small
Business and Civil Rights (SBCR) asked for his EEO rights to be enforced.
Complainant also states that he did not learn of the need to contact an
EEO Counselor until the reply letter from SBCR dated May 9, 1997.
The record indicates that immediately following the alleged discriminatory
incident of February 4, 1997, complainant wrote a letter dated February
13, 1997, raising allegations of age discrimination to the agency's
chairman and to the Commission. On March 11, 1997, the Regional Personnel
Officer spoke to complainant via telephone regarding his concerns and
provided complainant with the name and telephone number of the Director of
the SBCR. In addition, in a letter dated April 11, 1997, the Commission
advised complainant of the proper procedures to follow in filing a
discrimination complaint and provided complainant a copy of the 1614
regulations and Section IV, Chapter 3 of EEOC Management Directive 110.
The record also shows that complainant first contacted the Director
of the SBCR on April 23, 1997, regarding his February 13, 1997 letter
to the chairman, which he mistakenly believed to be a formal EEO
complaint of discrimination. Complainant then filed an appeal with
the EEOC on April 28, 1997, which the Commission closed as premature.
EEOC Appeal No. 01974139 (June 27, 1997). By letter dated May 9,
1997, the Director of the SBCR again informed complainant that he must
contact her office to arrange EEO counseling, if he wished to pursue a
discrimination complaint. Finally, in a letter dated March 23, 1998,
complainant requested consultation with an EEO Counselor concerning the
alleged discriminatory incident of February 4, 1997.
In the present case, the Commission finds that complainant failed to
contact an EEO Counselor and initiate the EEO process in a timely manner.
Assuming complainant did not know he needed to contact an EEO Counselor
until he received the April 11, 1997 letter from the EEOC, he still
waited over a year to request consultation with an EEO Counselor. Thus,
we find that complainant did not pursue his rights in a timely manner.
Accordingly, the agency's decision to dismiss complainant's complaint
was proper and is hereby
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
March 14, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.