01A22876_r
08-06-2002
Henry A. Thomas, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Henry A. Thomas v. Department of Veterans Affairs
01A22876
August 6, 2002
.
Henry A. Thomas,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A22876
Agency No. 2001-0544-2002101050
DECISION
Complainant initiated contact with an EEO Counselor on December 3,
2001. Complainant stated that he received a notice of right to file a
discrimination complaint on December 29, 2001. The notice dated December
26, 2001, stated that if a complaint is filed, it must be filed within
fifteen days after receipt of the notice. The notice listed three
different addresses where complainant could file his formal complaint.
The addresses were a post office box for the Regional EEO Officer in
Bay Pines, Florida, the agency Secretary in Washington, D.C., and the
Deputy Assistant Secretary in Washington, D.C. On January 18, 2002,
complainant filed a formal EEO complaint wherein he claimed that he
was discriminated against on the bases of his race (African-American),
sex (male), disability (pulmonary condition, hypertension, and visual
problems), age (dob 9/10/42), and in reprisal for his previous
EEO activity under Title VII, the Rehabilitation Act, and the Age
Discrimination in Employment Act when:
1. Since 1999, he was not allowed to attend the Director's morning
meetings on a routine basis and his EEO duties were �farmed out� to
lower level employees in Employee Relations.
2. In February 2001, his job functions were moved from the Stakeholders
Service Line to Human Resources.
3. On or about August 7, 2001, he was falsely accused of inappropriate
conduct, which resulted in an Administrative Board investigation, and
he received a notice of proposed removal in October 2001.
4. On or about August 8, 2001, he was detailed to the lab and assigned
to work with biohazardous materials that resulted in his hospitalization.
5. On August 20, 2001, he was detailed to the MRI Unit where he sustained
an injury.
6. Effective November 16, 2001, he was forced to retire from his position
as EEO Program Manager.
The agency dismissed the complaint on the grounds that complainant
failed to file the complaint in a timely manner. The agency noted
that complainant stated that he mailed his complaint to an Office of
Resolution Management address in Jacksonville because Federal Express
does not deliver mail to post office boxes. The agency stated that the
Office of Resolution Management unit that had been located in Jacksonville
moved to Lake City, Florida on October 9, 2001. The agency noted that it
never instructed complainant to send anything to Jacksonville since that
office closed nearly two months before complainant initially contacted
an EEO Counselor. The agency stated that it was Federal Express and
not the agency that sent the package containing the complaint back to
complainant on January 17, 2002.
On appeal, complainant states in a sworn affidavit that on January
7, 2002, he mailed a copy of his formal EEO complaint to the agency
Secretary. Complainant maintains that also on January 7, 2002, he sent
his formal complaint by Federal Express to an individual staffer at the
local agency office, whom he knew processed incoming EEO complaints.
Complainant states that inside the Federal Express envelope was another
envelope containing the complaint, and that envelope was addressed to the
regional office listed in the notice of right to file a discrimination
complaint. According to complainant, once the Federal Express package
was returned to him on January 18, 2002, he immediately mailed a copy
of his formal complaint to the address listed in the notice of right to
file a discrimination complaint.
Upon review of the record, we find that complainant has established that
he filed his formal EEO complaint in a timely manner. Complainant states
in a sworn affidavit that on January 7, 2002, he mailed a copy of his
complaint to the agency Secretary in Washington, D.C. The notice of
right to file a discrimination complaint listed the address of the agency
Secretary as one of the locations where the complaint could be filed.
Although complainant clearly erred in sending his formal complaint to
a Jacksonville address that was not listed on the notice, we find that
the complaint was filed with the agency Secretary, and that such filing
was done within fifteen days of when complainant received the notice
of right to file a discrimination complaint. Accordingly, the agency's
dismissal of the complaint was improper and is REVERSED. This complaint
is hereby REMANDED for further processing pursuant to the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. 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 (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
August 6, 2002
__________________
Date