01982391
03-26-1999
William C. Hall, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
William C. Hall, )
Appellant, )
)
v. ) Appeal No. 01982391
) Agency No. 9609G0440
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
Appellant filed a timely appeal with this Commission from a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. � 2000e et seq. Appellant alleged that he
was discriminated against on the bases of race (White) and sex (male)
when, between 1990 and 1994, he was denied a promotion from a GS-06 to
a GS-07 Paramedic and from a GS-07 to a GS-09 Supervisory Paramedic.
In its FAD, the agency dismissed appellant's complaint pursuant to 29
C.F.R. � 1614.107(b) for failure to timely initiate contact with an
EEO counselor. See EEOC Regulation 29 C.F.R. � 1614.105(a); Posadas
v. Department of the Army, EEOC Request No. 05980290 (June 25, 1998).
The agency issued this FAD after having complied with the Commission's
October 30, 1997, remand order instructing the agency to investigate
whether, during appellant's employment, the agency provided appellant
with EEO information which specifically referred to the forty five (45)
day time limit for contacting an EEO counselor.<1>
On remand, the Commission suggested that the agency could satisfy
its burden by submitting: (1) a statement from an employee confirming
that EEO posters containing the requisite time limit were on display at
appellant's work-site when appellant was employed; or (2) a statement from
the official, charged with conducting the New Employee Orientation (NEO),
attesting to appellant's attendance at the NEO and whether information
concerning the requisite time limit for EEO contact was explained.
See supra n.1.
Upon investigation, the agency found that appellant had attended the NEO
program on October 19, 1990, where he was informed of the requisite time
limit in which to contact an EEO counselor. The agency provided copies
of handouts that appellant would have received at the NEO program which
specifically provide information concerning the time frame in which
to contact an EEO counselor. As these handouts are now obsolete, the
agency also provided copies of its current, revised EEO materials.
The agency could not provide a copy of the EEO posters which were
on display at appellant's work-site when he worked there because such
posters were destroyed when the new procedures became effective, but
the agency submitted a copy of a revised poster.
The agency also submitted a statement from an EEO specialist who
has conducted the EEO portion of the NEO program since 1987. The EEO
specialist attested to the emphasis placed on informing new employees of
the time frame in which they have to contact an EEO counselor. The agency
also provided a statement from an employee development specialist who
has administered the NEO program since 1982, and who stated that the
EEO presentation has consistently been a feature of the NEO program.
On appeal, appellant denies that he ever received any EEO materials.
He states that the agency has not provided him proof of his attendance at
a NEO program and what subjects were covered. He also states that there
was no EEO poster ever displayed at his work-site. Appellant offers no
evidence to support his assertions, and his allegations fail to rebut
the agency's submissions.
Accordingly, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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 26, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 We note that after appellant's complaint was dismissed by the agency, we
affirmed the agency's dismissal of an allegation of age discrimination and
reversed the agency's dismissal of the issue addressed herein because the
agency did not establish that appellant's counselor contact was untimely
pursuant to 29 C.F.R. � 1614.105(a)(1). See Hall v. Department of the
Army, EEOC Appeal No. 01971242 (October 30, 1997).