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190 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120063213.txt | 0120063213.txt | TXT | text/plain | 7,750 | Kabir Isa, Complainant, v. Kenneth Y. Tomlinson, Chairman, Broadcasting Board of Governors, Agency. | March 28, 2006 | Appeal Number: 01200632131
Complaint Allegations:
In his complaint, complainant alleged that he was subjected to discrimination on the bases of national origin (Hausa) and religion (Islam) when on March 4, 2005, he was forced to resign (constructive discharge). In March 4, 2005, complainant resigned from his position with the agency (Voice of America), claiming constructive discharge. Later that month, complainant contacted the Director, Office of Civil Rights (OCR), to discuss his concerns regarding his separation from the agency and to initiate an EEO complaint. The record shows, however, that complainant did not pursue his complaint at that time. Complainant re-contacted an EEO Counselor in December 2005, and on February 13, 2006, filed his formal complaint. In its March 28, 2006, final decision, the agency dismissed complainant's complaint for untimely EEO Counselor, pursuant to 29 C.F.R. § 1614.107(a)(2). The agency stated that the record shows that while complainant initially contacted OCR within the 45-day time period, he voluntarily chose not to pursue the EEO process at that time. Subsequently, complainant's contact in December 2005, was beyond the 45-day time limitation. The agency also stated that complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. In pertinent part, the EEOC Regulation found at 29 C.F.R. § 1614.107(a)(2) allows an agency to dismiss a complaint that fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.105. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of an EEO Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. In order to establish EEO Counselor contact, an individual must contact an agency official logically connected to the EEO process and exhibit intent to begin the EEO process. See Allen v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996).
Case Facts:
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 28, 2006, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
Legal Analysis:
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely
EEO Counselor contact. In his complaint, complainant alleged that he
was subjected to discrimination on the bases of national origin (Hausa)
and religion (Islam) when on March 4, 2005, he was forced to resign
(constructive discharge).
In March 4, 2005, complainant resigned from his position with the agency
(Voice of America), claiming constructive discharge. Later that month,
complainant contacted the Director, Office of Civil Rights (OCR), to
discuss his concerns regarding his separation from the agency and to
initiate an EEO complaint. The record shows, however, that complainant
did not pursue his complaint at that time. Complainant re-contacted
an EEO Counselor in December 2005, and on February 13, 2006, filed his
formal complaint.
In its March 28, 2006, final decision, the agency dismissed
complainant's complaint for untimely EEO Counselor, pursuant to 29
C.F.R. § 1614.107(a)(2). The agency stated that the record shows
that while complainant initially contacted OCR within the 45-day time
period, he voluntarily chose not to pursue the EEO process at that time.
Subsequently, complainant's contact in December 2005, was beyond the
45-day time limitation. The agency also stated that complainant has
presented no persuasive arguments or evidence warranting an extension
of the time limit for initiating EEO Counselor contact.
In pertinent part, the EEOC Regulation found at 29 C.F.R. § 1614.107(a)(2)
allows an agency to dismiss a complaint that fails to comply with
the applicable time limits contained in 29 C.F.R. § 1614.105. EEOC
Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of an EEO Counselor
within forty-five (45) days of the date of the matter alleged to be
discriminatory or, in the case of a personnel action, within forty-five
(45) days of the effective date of the action. In order to establish
EEO Counselor contact, an individual must contact an agency official
logically connected to the EEO process and exhibit intent to begin the
EEO process. See Allen v. United States Postal Service, EEOC Request
No. 05950933 (July 9, 1996).
The record discloses that the alleged discriminatory events occurred
on March 4, 2005, but that complainant did not initiate contact with an
EEO Counselor until December 2005, which is beyond the forty-five (45)
day limitation period. The Commission acknowledges that complainant
contacted an EEO Counselor in March 2005, however, he did not pursue an
EEO complainant at that time. On appeal, complainant states that he
"had every intention of getting back" to the EEO Counselor, however,
on April 1, 2005, he went to Nigeria for an extended period of time
in order to take care of family matters, due to his mother's death.
Complainant did not initiate EEO contact and pursue an EEO complaint
until December 2005. We are not persuaded that the circumstances as
outlined herein warrant an extension of the time limit for initiating
EEO Counselor, especially in view of the fact that the record reflects
that between March and December 2005, complainant was able to file a
grievance with the union and also filed for unemployment compensation.
Final Decision:
Accordingly, the agency's final decision dismissing complainant's complaint is affirmed. | Kabir Isa,
Complainant,
v.
Kenneth Y. Tomlinson,
Chairman,
Broadcasting Board of Governors,
Agency.
Appeal No. 01200632131
Agency No. OCR-06-09
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 28, 2006, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely
EEO Counselor contact. In his complaint, complainant alleged that he
was subjected to discrimination on the bases of national origin (Hausa)
and religion (Islam) when on March 4, 2005, he was forced to resign
(constructive discharge).
In March 4, 2005, complainant resigned from his position with the agency
(Voice of America), claiming constructive discharge. Later that month,
complainant contacted the Director, Office of Civil Rights (OCR), to
discuss his concerns regarding his separation from the agency and to
initiate an EEO complaint. The record shows, however, that complainant
did not pursue his complaint at that time. Complainant re-contacted
an EEO Counselor in December 2005, and on February 13, 2006, filed his
formal complaint.
In its March 28, 2006, final decision, the agency dismissed
complainant's complaint for untimely EEO Counselor, pursuant to 29
C.F.R. § 1614.107(a)(2). The agency stated that the record shows
that while complainant initially contacted OCR within the 45-day time
period, he voluntarily chose not to pursue the EEO process at that time.
Subsequently, complainant's contact in December 2005, was beyond the
45-day time limitation. The agency also stated that complainant has
presented no persuasive arguments or evidence warranting an extension
of the time limit for initiating EEO Counselor contact.
In pertinent part, the EEOC Regulation found at 29 C.F.R. § 1614.107(a)(2)
allows an agency to dismiss a complaint that fails to comply with
the applicable time limits contained in 29 C.F.R. § 1614.105. EEOC
Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of an EEO Counselor
within forty-five (45) days of the date of the matter alleged to be
discriminatory or, in the case of a personnel action, within forty-five
(45) days of the effective date of the action. In order to establish
EEO Counselor contact, an individual must contact an agency official
logically connected to the EEO process and exhibit intent to begin the
EEO process. See Allen v. United States Postal Service, EEOC Request
No. 05950933 (July 9, 1996).
The record discloses that the alleged discriminatory events occurred
on March 4, 2005, but that complainant did not initiate contact with an
EEO Counselor until December 2005, which is beyond the forty-five (45)
day limitation period. The Commission acknowledges that complainant
contacted an EEO Counselor in March 2005, however, he did not pursue an
EEO complainant at that time. On appeal, complainant states that he
"had every intention of getting back" to the EEO Counselor, however,
on April 1, 2005, he went to Nigeria for an extended period of time
in order to take care of family matters, due to his mother's death.
Complainant did not initiate EEO contact and pursue an EEO complaint
until December 2005. We are not persuaded that the circumstances as
outlined herein warrant an extension of the time limit for initiating
EEO Counselor, especially in view of the fact that the record reflects
that between March and December 2005, complainant was able to file a
grievance with the union and also filed for unemployment compensation.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
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
April 2, 2008
__________________
Date
1 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
??
??
??
??
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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191 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01973751.txt | 01973751.txt | TXT | text/plain | 28,450 | September 16, 1999 | Appeal Number: 01973751
Case Facts:
Appellant filed an appeal with this Commission from a final decision
of the Department of the Interior (agency) 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., and
the Age Discrimination in Employment Act (ADEA) of 1967, as amended,
29 U.S.C. § 621, et seq. The appeal is accepted in accordance with
EEOC Order No. 960.001.
ISSUES
In Complaint No. 059 (Complaint No. 1) appellant alleges discrimination
based upon his age (46) and reprisal (EEO counselor) when, in January,
1994, he was non-selected for the position of Supervisory Cartographer,
GS-1370-12.
In Complaint No. 078 (Complaint No. 2) appellant alleges discrimination
based upon his age (46), sex (male), and reprisal (EEO counselor) when:
a. in October, 1993, appellant was not selected/promoted to the
position of EEO Manager, GS-12, advertised in Vacancy Announcement
Number SC-93-28;<1>
b. in December, 1993, appellant was denied the opportunity to serve
on a work team;
c. on January 31, 1994, appellant was notified that his application to
participate in the Women's Executive Leadership Program (WELP) was not
forwarded by the Service Center Personnel Office to the rating panel
for consideration;
d. on April 22, 1994, the Service Center Director (SCD) requested
that the Office of Personnel Management (OPM) reopen and reconsider
its decision to upgrade appellant's position from GS-11 to GS-12; and
e. on May 10, 1994, appellant resigned his collateral EEO counselor
position because of reprisal actions taken against him by management
officials.
Appellant also alleges<2> discrimination based upon reprisal (EEO
counselor) when:
a. in April, 1993, Personnel management headed by the Personnel Chief
(PC) denied one pay period of temporary promotion pay which was timely
supported by his supervisor;
b. in April, 1994, Personnel management headed by PC denied appellant
access to personnel files in the performance of his EEO counseling
duties;
c. in or about winter/spring of 1994, the former EEO Manager interfered
with the resolution of appellant's EEO case;
d. in or about winter/spring of 1994, the former EEO Manager failed
to assign appellant an EEO Counselor within the 45-day time frame;
e. in or about winter/spring of 1994, appellant's EEO Counselor failed
to conduct an objective and complete inquiry and tried to talk appellant
out of filing a complaint; and
f. in or about winter/spring of 1994, the former EEO Manager breached
appellant's confidentiality and denied him the right to remain anonymous
on Complaint No. 2.<3>
On May 5, 1994 and July 5, 1994 appellant filed formal Complaint 1 and
2, respectively. Following an investigation, appellant requested a
hearing before an EEOC Administrative Judge (AJ), but later rescinded
his request. On February 21, 1997, the agency issued a Final Agency
Decision (FAD) finding no discrimination. It is this agency decision
which the appellant now appeals.
During all relevant times, appellant worked as a Cartographer, GS-11, in
the Branch of Mapping Sciences, Bureau of Land Management (BLM or Service
Center) in Colorado. From approximately 1987 to May, 1994, appellant
also assumed collateral duties of an EEO Counselor. The Service Center
is headed by S1 (age 49, male, prior EEO Counselor)<4> and is comprised
of three sections; Cartography, Photogrammetry, and Remote Sensing.
Appellant alleges that starting in 1992, while performing his EEO
Counseling duties, various EEO cases arose whereby appellant disagreed
with personnel and management officials with respect to the merits
of the informal EEO complaints. Appellant contends that because of
his outspoken and contrary position regarding the merits of these EEO
informal complaints, personnel and management officials soon began to
engage in acts of reprisal. Appellant further alleges that in late
1993, he realized that his only recourse was to file an EEO Complaint.
Appellant alleges that he sought EEO Counseling in late January, 1994.
Appellant further alleges that after making initial contact with the EEO
office, the new EEO Chief, engaged in reprisal by processing appellant's
informal and formal complaints in a biased and unprofessional manner
which denied appellant due process.
For the reasons set forth below, the Commission AFFIRMS the FAD.
PROCEDURAL DISMISSALS BY THE AGENCY
Untimely Allegations Involving the October, 1993 Non-Selection and April,
1993 Denial of Pay
The agency determined that these two untimely allegations failed to
present a continuing violation. Specifically, the agency found that these
allegations were not related to those allegations which were timely filed.
The agency noted that the timely allegations involved the Service Center
Director (SCD), while the 1993 non-selection was processed by a Service
Center Personnel Staffing Specialist and the denial of pay involved the
Personnel Management Office.
A continuing violation has been defined as a series of related acts,
one or more of which falls within the limitations period, or the
maintenance over time of a discriminatory policy or system. Martinez
v. Department of Defense, EEOC Request No. 05950499 (August 1, 1996).
In determining whether a series of discrete occurrences constitute a
continuing violation, the Commission will look at such factors as whether
the acts involve the same type of discrimination, the frequency of the
acts, and whether the acts have a degree of permanence sufficient to
trigger an individual's awareness of his duty to assert his rights, i.e.,
a reasonable suspicion of discrimination. Guba v. Army, EEOC Request
No. 05970635 (February 11, 1999). Once appellant has a reasonable
suspicion of discrimination, the complainant may not wait until all
supporting facts become apparent before contacting a counselor. Id.,
citing Peets v. United States Postal Service, EEOC Request No. 05950725
(March 28, 1996). Applying these standards to the present case, we
find that appellant had a reasonable suspicion of discrimination, at
the latest, in October, 1993.
Appellant states that he was warned of reprisal as early as 1992 and
continued to be warned by many colleagues and friends over the years.
Appellant specifically states that several people warned him about
reprisals in October, 1993, the same month he was non-selected for the
EEO Manager position. In addition, on appeal, appellant explains that he
did "not feel that he had enough evidence and proof of discrimination,
[with respect to both allegations,] to reasonably file a complaint" at
that time. Appellant further states that he intentionally delayed the
filing of a complaint on these two allegations until "a further pattern
of continuing violations developed." In addition to the foregoing,
we find that since appellant was an EEO counselor, he should have been
fully aware of his filing requirements. Accordingly, we agree with the
agency's determination that appellant failed to establish a continuing
violation, and find these allegations untimely filed.
Failure to Receive Files from Personnel in Accordance with Appellant's
EEO Counseling Duties
The agency determined that this allegation was moot because appellant
eventually received the files requested. We agree with the agency.
See County of Los Angeles v. Davis, 440 U.S. 625 (1979). In addition,
even assuming this allegation was improperly dismissed as moot, the record
as a whole fails to support discriminatory animus. The clear weight of
the evidence supports the finding that while the Personnel officials
were not particularly helpful to appellant, they were attempting to
protect the agency's files through legitimate channels.
Failure to Receive a Fair and Objective Inquiry at the Informal Counseling
Stage
The agency dismissed this allegation on the bases of failing to state
a claim and mootness. Specifically, the agency found that appellant
failed to show how he was harmed since he filed a formal EEO complaint.
In addition, the agency found that the EEO counselor did conduct
an objective and complete inquiry since the record shows that the
Counselor interviewed three witnesses determined to be most involved
and knowledgeable about the complaint. The record also indicates that
appellant's documents (approximately 100 pages) were made part of the
official complaint file.
We agree with the agency and note that the Commission has held that
allegations which relate to the processing of a previously filed complaint
do not state independent allegations of employment discrimination. See
Kleinman v. U.S. Postal Service, EEOC Request No. 05940579 (September 22,
1994); Story v. U.S. Postal Service, EEOC Appeal No. 01965883 (March 13,
1997). In addition, if a complainant is dissatisfied with the processing
of his pending complaint, he should be referred to the agency official
responsible for the quality of complaints processing. Agency officials
should earnestly attempt to resolve dissatisfaction with the complaints
process as early and expeditiously as possible. See EEO MD 110 (4-8).
AGENCY'S FINDING OF NO DISCRIMINATION ON REMAINING ALLEGATIONS
January, 1994 Non-Selection
The agency found that appellant established a prima facie case of age
discrimination and reprisal with respect to the 1994 non-selection.
Specifically, the agency found that the record supported the finding
that: (1) appellant was a member of both protected classes (age 46 and
EEO Counselor); (2) appellant applied and was found qualified for the
position; (3) the selectee fell outside appellant's protected classes
(38 years old and no prior EEO activity); (4) management was aware of
appellant's prior duty as an EEO Counselor; and (5) appellant was still
serving as an EEO Counselor when he applied and was non-selected for
the position.
The agency found management's articulated explanation for its
non-selection legitimate and non-discriminatory. Specifically,
appellant's supervisor (S1) (49, prior EEO counselor), stated that he
chose the selectee for the temporary supervisory position because he
demonstrated superior leadership and managerial skills. S1 stated that
all three candidates were interviewed using the same questions. S1 stated
that, in his judgement, the selectee's forte in the area of customer
service and promoting high morale, and galvanizing the staff to work
together as a cohesive team for high unit productivity, outweighed the
strengths appellant would have brought to the one-year temporary position.
S1 further stated that while appellant's forte (automation skills) were
important, he felt as though more than one-year would have been needed to
fully implement his ideas in the automation area and the need for quality
customer service, morale and leadership were more important at that time.
Appellant argues that his experience, skills, and education are far
superior to the selectee's. He also claims that he had more supervisory
experience.
The agency found that appellant failed to prove pretext or that the
non-selection was based upon discriminatory animus. Accordingly, the
agency determined that appellant failed to prove age discrimination or
reprisal.
Request by SCD to Reopen OPM's Decision to Upgrade Appellant's Position
The undisputed record indicates that in November, 1991, appellant's
first and second-line supervisors decided to change his and a co-worker's
position description (PD). The PD was changed in an attempt to upgrade
the position classification from a GS-11 to a GS-12. The PDs were
finalized and submitted to Service Center Personnel for a desk audit.
The first desk audit appeared to be inadequate to management and,
accordingly, a second desk audit was conducted. The final result of the
desk audit was that the position was correctly classified as a GS-11.
Appellant claims that the desk audit was not objective and the Service
Center Personnel Office had no intentions to fairly and accurately
classify the PDs. Appellant ultimately appealed this decision to
the Office of Personnel Management (OPM). Ultimately, OPM issued a
decision ordering appellant's position upgraded to a GS-12. However,
appellant claims that in an attempt to retaliate against him, Service
Center Personnel officials convinced SCD to challenge OPM's decision.
In approximately, late 1994, OPM eventually reversed its decision and
denied appellant his upgrade.
The agency found that appellant failed to support a prima facie case of
sex or age discrimination since the record contained no evidence showing
that he was treated differently from similarly situated individuals
outside appellant's protected classes (46, male). However, the agency
did find that appellant established a prima facie case of reprisal.
Accordingly, the agency considered management's articulated response and
found it legitimate and non-discriminatory. Specifically, management
explained that the work which OPM cited to justify its decision in
awarding appellant an upgrade was not applicable, nor ever done at the
BLM by any cartographer, including appellant. Accordingly, SCD explained
to OPM what work was actually performed by appellant and stated that he
did not think the GS-12 was warranted. SCD testified that if he accepted
the decision from OPM without clarification, it could become applicable
to other cartographers which would cause a necessary readjustment in
the work of many positions.
According to the agency, appellant failed to provide any credible evidence
of pretext or discriminatory animus. Therefore, the agency found that
appellant failed to prove discrimination.
Denial of Opportunity to Serve on a Work Team
The agency found that appellant failed to establish a prima facie case
of discrimination based upon sex, age and reprisal with respect to
this allegation. Specifically, with respect to age and sex, the agency
found that five males and eight women were placed on the work team. With
respect to age, the agency noted that nine persons were within appellant's
protected age group and five persons were outside appellant's protected
age group. In addition, the agency determined that a prima facie case of
reprisal was not present since the record did not support a sufficient
nexus between appellant's prior EEO activity and the non-selection of
appellant to serve on the work team, since the non-selection took place in
December, 1993, one month prior to appellant's initial EEO involvement.
The agency conceded that the responsible management officials could
not provide any reason for appellant not being included on a work team.
However, since it found that appellant failed to establish a prima facie
case of discrimination, the agency was not obligated to articulate a
legitimate, non-discriminatory explanation in this particular instance.
Lastly, the agency noted that a strictly voluntary committee fails to
rise to the level of a "term, condition, or benefit of employment,"
and accordingly, the appellant failed to state a claim on this issue.
Application to Participate in the Women's Executive Leadership Program
was Not Forwarded by the Service Center Personnel Officer to the Rating
Panel for Consideration
The agency found that appellant established a prima facie case of
discrimination based upon sex, age and reprisal with respect to this
allegation. However, the agency found that the responsible management
official articulated a legitimate, non-discriminatory explanation for
failing to forward appellant's application to the rating panel for further
consideration. Specifically, it was explained that appellant failed
to submit a complete application package prior to the closing date.
The record shows that all other applications submitted were properly
completed and submitted on time. It is undisputed that appellant failed
to include the required Knowledge, Skills, and Abilities description
and current performance appraisal with his application package.
The agency also found that while appellant argued the agency had a policy
of allowing applicants to complete their application package after the
closing date so long as they submitted a portion of the application
on time, appellant failed to present any credible evidence to support
his contention. Moreover, the record indicates that as long as the
responsible management official has been forwarding application packages,
no incomplete package had ever been forwarded to the rating panel.
In addition to failing to present evidence of pretext, the agency found
that appellant failed to present any credible evidence of discriminatory
animus. Accordingly, the agency found that appellant failed to establish
discrimination based upon sex, age or reprisal.
Appellant Resigned his Collateral Duties as an EEO Counselor
The agency found that appellant failed to present a prima facie case of
discrimination based upon reprisal since appellant failed to allege that
he was forced to resign his duties, but rather stated that he voluntarily
resigned because of the alleged reprisal actions. In addition, the agency
determined that appellant's vague description of reprisal actions failed
to support his claim. For example, appellant claimed that he resigned
because of reprisal actions which included: (1) the failure by management
and personnel to cooperate with him in providing personnel documents to do
his job as an EEO Counselor; and (2) the EEO Manager's interference with
the performance of appellant's duties as EEO Counselor by taking away
the resolution process from all EEO Counselors. The agency essentially
found that the record evidence did not support a finding of constructive
discharge with respect to appellant's EEO Counseling duties. Accordingly,
the agency determined that appellant failed to prove reprisal.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission finds
that the agency, in all material respects, except as provided below,
accurately set forth the relevant facts and properly analyzed the case
using the appropriate regulations, policies, and laws.
With respect to the work team issue, we disagree with the agency's
Legal Analysis:
the Commission AFFIRMS the FAD.
PROCEDURAL DISMISSALS BY THE AGENCY
Untimely Allegations Involving the October, 1993 Non-Selection and April,
1993 Denial of Pay
The agency determined that these two untimely allegations failed to
present a continuing violation. Specifically, the agency found that these
allegations were not related to those allegations which were timely filed.
The agency noted that the timely allegations involved the Service Center
Director (SCD), while the 1993 non-selection was processed by a Service
Center Personnel Staffing Specialist and the denial of pay involved the
Personnel Management Office.
A continuing violation has been defined as a series of related acts,
one or more of which falls within the limitations period, or the
maintenance over time of a discriminatory policy or system. Martinez
v. Department of Defense, EEOC Request No. 05950499 (August 1, 1996).
In determining whether a series of discrete occurrences constitute a
continuing violation, the Commission will look at such factors as whether
the acts involve the same type of discrimination, the frequency of the
acts, and whether the acts have a degree of permanence sufficient to
trigger an individual's awareness of his duty to assert his rights, i.e.,
a reasonable suspicion of discrimination. Guba v. Army, EEOC Request
No. 05970635 (February 11, 1999). Once appellant has a reasonable
suspicion of discrimination, the complainant may not wait until all
supporting facts become apparent before contacting a counselor. Id.,
citing Peets v. United States Postal Service, EEOC Request No. 05950725
(March 28, 1996). Applying these standards to the present case, we
find that appellant had a reasonable suspicion of discrimination, at
the latest, in October, 1993.
Appellant states that he was warned of reprisal as early as 1992 and
continued to be warned by many colleagues and friends over the years.
Appellant specifically states that several people warned him about
reprisals in October, 1993, the same month he was non-selected for the
EEO Manager position. In addition, on appeal, appellant explains that he
did "not feel that he had enough evidence and proof of discrimination,
[with respect to both allegations,] to reasonably file a complaint" at
that time. Appellant further states that he intentionally delayed the
filing of a complaint on these two allegations until "a further pattern
of continuing violations developed." In addition to the foregoing,
we find that since appellant was an EEO counselor, he should have been
fully aware of his filing requirements. | Keith A. Francis v. Department of the Interior
01973751
September 16, 1999
Keith A. Francis, )
Appellant, )
) Appeal No. 01973751
v. ) Agency Nos. LLM-94-059
) LLM-94-078
Bruce Babbitt, ) LLM-94-079R
Secretary, )
Department of the Interior, )
Agency. )
)
_______________________________)
DECISION
Appellant filed an appeal with this Commission from a final decision
of the Department of the Interior (agency) 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., and
the Age Discrimination in Employment Act (ADEA) of 1967, as amended,
29 U.S.C. § 621, et seq. The appeal is accepted in accordance with
EEOC Order No. 960.001.
ISSUES
In Complaint No. 059 (Complaint No. 1) appellant alleges discrimination
based upon his age (46) and reprisal (EEO counselor) when, in January,
1994, he was non-selected for the position of Supervisory Cartographer,
GS-1370-12.
In Complaint No. 078 (Complaint No. 2) appellant alleges discrimination
based upon his age (46), sex (male), and reprisal (EEO counselor) when:
a. in October, 1993, appellant was not selected/promoted to the
position of EEO Manager, GS-12, advertised in Vacancy Announcement
Number SC-93-28;<1>
b. in December, 1993, appellant was denied the opportunity to serve
on a work team;
c. on January 31, 1994, appellant was notified that his application to
participate in the Women's Executive Leadership Program (WELP) was not
forwarded by the Service Center Personnel Office to the rating panel
for consideration;
d. on April 22, 1994, the Service Center Director (SCD) requested
that the Office of Personnel Management (OPM) reopen and reconsider
its decision to upgrade appellant's position from GS-11 to GS-12; and
e. on May 10, 1994, appellant resigned his collateral EEO counselor
position because of reprisal actions taken against him by management
officials.
Appellant also alleges<2> discrimination based upon reprisal (EEO
counselor) when:
a. in April, 1993, Personnel management headed by the Personnel Chief
(PC) denied one pay period of temporary promotion pay which was timely
supported by his supervisor;
b. in April, 1994, Personnel management headed by PC denied appellant
access to personnel files in the performance of his EEO counseling
duties;
c. in or about winter/spring of 1994, the former EEO Manager interfered
with the resolution of appellant's EEO case;
d. in or about winter/spring of 1994, the former EEO Manager failed
to assign appellant an EEO Counselor within the 45-day time frame;
e. in or about winter/spring of 1994, appellant's EEO Counselor failed
to conduct an objective and complete inquiry and tried to talk appellant
out of filing a complaint; and
f. in or about winter/spring of 1994, the former EEO Manager breached
appellant's confidentiality and denied him the right to remain anonymous
on Complaint No. 2.<3>
On May 5, 1994 and July 5, 1994 appellant filed formal Complaint 1 and
2, respectively. Following an investigation, appellant requested a
hearing before an EEOC Administrative Judge (AJ), but later rescinded
his request. On February 21, 1997, the agency issued a Final Agency
Decision (FAD) finding no discrimination. It is this agency decision
which the appellant now appeals.
During all relevant times, appellant worked as a Cartographer, GS-11, in
the Branch of Mapping Sciences, Bureau of Land Management (BLM or Service
Center) in Colorado. From approximately 1987 to May, 1994, appellant
also assumed collateral duties of an EEO Counselor. The Service Center
is headed by S1 (age 49, male, prior EEO Counselor)<4> and is comprised
of three sections; Cartography, Photogrammetry, and Remote Sensing.
Appellant alleges that starting in 1992, while performing his EEO
Counseling duties, various EEO cases arose whereby appellant disagreed
with personnel and management officials with respect to the merits
of the informal EEO complaints. Appellant contends that because of
his outspoken and contrary position regarding the merits of these EEO
informal complaints, personnel and management officials soon began to
engage in acts of reprisal. Appellant further alleges that in late
1993, he realized that his only recourse was to file an EEO Complaint.
Appellant alleges that he sought EEO Counseling in late January, 1994.
Appellant further alleges that after making initial contact with the EEO
office, the new EEO Chief, engaged in reprisal by processing appellant's
informal and formal complaints in a biased and unprofessional manner
which denied appellant due process.
For the reasons set forth below, the Commission AFFIRMS the FAD.
PROCEDURAL DISMISSALS BY THE AGENCY
Untimely Allegations Involving the October, 1993 Non-Selection and April,
1993 Denial of Pay
The agency determined that these two untimely allegations failed to
present a continuing violation. Specifically, the agency found that these
allegations were not related to those allegations which were timely filed.
The agency noted that the timely allegations involved the Service Center
Director (SCD), while the 1993 non-selection was processed by a Service
Center Personnel Staffing Specialist and the denial of pay involved the
Personnel Management Office.
A continuing violation has been defined as a series of related acts,
one or more of which falls within the limitations period, or the
maintenance over time of a discriminatory policy or system. Martinez
v. Department of Defense, EEOC Request No. 05950499 (August 1, 1996).
In determining whether a series of discrete occurrences constitute a
continuing violation, the Commission will look at such factors as whether
the acts involve the same type of discrimination, the frequency of the
acts, and whether the acts have a degree of permanence sufficient to
trigger an individual's awareness of his duty to assert his rights, i.e.,
a reasonable suspicion of discrimination. Guba v. Army, EEOC Request
No. 05970635 (February 11, 1999). Once appellant has a reasonable
suspicion of discrimination, the complainant may not wait until all
supporting facts become apparent before contacting a counselor. Id.,
citing Peets v. United States Postal Service, EEOC Request No. 05950725
(March 28, 1996). Applying these standards to the present case, we
find that appellant had a reasonable suspicion of discrimination, at
the latest, in October, 1993.
Appellant states that he was warned of reprisal as early as 1992 and
continued to be warned by many colleagues and friends over the years.
Appellant specifically states that several people warned him about
reprisals in October, 1993, the same month he was non-selected for the
EEO Manager position. In addition, on appeal, appellant explains that he
did "not feel that he had enough evidence and proof of discrimination,
[with respect to both allegations,] to reasonably file a complaint" at
that time. Appellant further states that he intentionally delayed the
filing of a complaint on these two allegations until "a further pattern
of continuing violations developed." In addition to the foregoing,
we find that since appellant was an EEO counselor, he should have been
fully aware of his filing requirements. Accordingly, we agree with the
agency's determination that appellant failed to establish a continuing
violation, and find these allegations untimely filed.
Failure to Receive Files from Personnel in Accordance with Appellant's
EEO Counseling Duties
The agency determined that this allegation was moot because appellant
eventually received the files requested. We agree with the agency.
See County of Los Angeles v. Davis, 440 U.S. 625 (1979). In addition,
even assuming this allegation was improperly dismissed as moot, the record
as a whole fails to support discriminatory animus. The clear weight of
the evidence supports the finding that while the Personnel officials
were not particularly helpful to appellant, they were attempting to
protect the agency's files through legitimate channels.
Failure to Receive a Fair and Objective Inquiry at the Informal Counseling
Stage
The agency dismissed this allegation on the bases of failing to state
a claim and mootness. Specifically, the agency found that appellant
failed to show how he was harmed since he filed a formal EEO complaint.
In addition, the agency found that the EEO counselor did conduct
an objective and complete inquiry since the record shows that the
Counselor interviewed three witnesses determined to be most involved
and knowledgeable about the complaint. The record also indicates that
appellant's documents (approximately 100 pages) were made part of the
official complaint file.
We agree with the agency and note that the Commission has held that
allegations which relate to the processing of a previously filed complaint
do not state independent allegations of employment discrimination. See
Kleinman v. U.S. Postal Service, EEOC Request No. 05940579 (September 22,
1994); Story v. U.S. Postal Service, EEOC Appeal No. 01965883 (March 13,
1997). In addition, if a complainant is dissatisfied with the processing
of his pending complaint, he should be referred to the agency official
responsible for the quality of complaints processing. Agency officials
should earnestly attempt to resolve dissatisfaction with the complaints
process as early and expeditiously as possible. See EEO MD 110 (4-8).
AGENCY'S FINDING OF NO DISCRIMINATION ON REMAINING ALLEGATIONS
January, 1994 Non-Selection
The agency found that appellant established a prima facie case of age
discrimination and reprisal with respect to the 1994 non-selection.
Specifically, the agency found that the record supported the finding
that: (1) appellant was a member of both protected classes (age 46 and
EEO Counselor); (2) appellant applied and was found qualified for the
position; (3) the selectee fell outside appellant's protected classes
(38 years old and no prior EEO activity); (4) management was aware of
appellant's prior duty as an EEO Counselor; and (5) appellant was still
serving as an EEO Counselor when he applied and was non-selected for
the position.
The agency found management's articulated explanation for its
non-selection legitimate and non-discriminatory. Specifically,
appellant's supervisor (S1) (49, prior EEO counselor), stated that he
chose the selectee for the temporary supervisory position because he
demonstrated superior leadership and managerial skills. S1 stated that
all three candidates were interviewed using the same questions. S1 stated
that, in his judgement, the selectee's forte in the area of customer
service and promoting high morale, and galvanizing the staff to work
together as a cohesive team for high unit productivity, outweighed the
strengths appellant would have brought to the one-year temporary position.
S1 further stated that while appellant's forte (automation skills) were
important, he felt as though more than one-year would have been needed to
fully implement his ideas in the automation area and the need for quality
customer service, morale and leadership were more important at that time.
Appellant argues that his experience, skills, and education are far
superior to the selectee's. He also claims that he had more supervisory
experience.
The agency found that appellant failed to prove pretext or that the
non-selection was based upon discriminatory animus. Accordingly, the
agency determined that appellant failed to prove age discrimination or
reprisal.
Request by SCD to Reopen OPM's Decision to Upgrade Appellant's Position
The undisputed record indicates that in November, 1991, appellant's
first and second-line supervisors decided to change his and a co-worker's
position description (PD). The PD was changed in an attempt to upgrade
the position classification from a GS-11 to a GS-12. The PDs were
finalized and submitted to Service Center Personnel for a desk audit.
The first desk audit appeared to be inadequate to management and,
accordingly, a second desk audit was conducted. The final result of the
desk audit was that the position was correctly classified as a GS-11.
Appellant claims that the desk audit was not objective and the Service
Center Personnel Office had no intentions to fairly and accurately
classify the PDs. Appellant ultimately appealed this decision to
the Office of Personnel Management (OPM). Ultimately, OPM issued a
decision ordering appellant's position upgraded to a GS-12. However,
appellant claims that in an attempt to retaliate against him, Service
Center Personnel officials convinced SCD to challenge OPM's decision.
In approximately, late 1994, OPM eventually reversed its decision and
denied appellant his upgrade.
The agency found that appellant failed to support a prima facie case of
sex or age discrimination since the record contained no evidence showing
that he was treated differently from similarly situated individuals
outside appellant's protected classes (46, male). However, the agency
did find that appellant established a prima facie case of reprisal.
Accordingly, the agency considered management's articulated response and
found it legitimate and non-discriminatory. Specifically, management
explained that the work which OPM cited to justify its decision in
awarding appellant an upgrade was not applicable, nor ever done at the
BLM by any cartographer, including appellant. Accordingly, SCD explained
to OPM what work was actually performed by appellant and stated that he
did not think the GS-12 was warranted. SCD testified that if he accepted
the decision from OPM without clarification, it could become applicable
to other cartographers which would cause a necessary readjustment in
the work of many positions.
According to the agency, appellant failed to provide any credible evidence
of pretext or discriminatory animus. Therefore, the agency found that
appellant failed to prove discrimination.
Denial of Opportunity to Serve on a Work Team
The agency found that appellant failed to establish a prima facie case
of discrimination based upon sex, age and reprisal with respect to
this allegation. Specifically, with respect to age and sex, the agency
found that five males and eight women were placed on the work team. With
respect to age, the agency noted that nine persons were within appellant's
protected age group and five persons were outside appellant's protected
age group. In addition, the agency determined that a prima facie case of
reprisal was not present since the record did not support a sufficient
nexus between appellant's prior EEO activity and the non-selection of
appellant to serve on the work team, since the non-selection took place in
December, 1993, one month prior to appellant's initial EEO involvement.
The agency conceded that the responsible management officials could
not provide any reason for appellant not being included on a work team.
However, since it found that appellant failed to establish a prima facie
case of discrimination, the agency was not obligated to articulate a
legitimate, non-discriminatory explanation in this particular instance.
Lastly, the agency noted that a strictly voluntary committee fails to
rise to the level of a "term, condition, or benefit of employment,"
and accordingly, the appellant failed to state a claim on this issue.
Application to Participate in the Women's Executive Leadership Program
was Not Forwarded by the Service Center Personnel Officer to the Rating
Panel for Consideration
The agency found that appellant established a prima facie case of
discrimination based upon sex, age and reprisal with respect to this
allegation. However, the agency found that the responsible management
official articulated a legitimate, non-discriminatory explanation for
failing to forward appellant's application to the rating panel for further
consideration. Specifically, it was explained that appellant failed
to submit a complete application package prior to the closing date.
The record shows that all other applications submitted were properly
completed and submitted on time. It is undisputed that appellant failed
to include the required Knowledge, Skills, and Abilities description
and current performance appraisal with his application package.
The agency also found that while appellant argued the agency had a policy
of allowing applicants to complete their application package after the
closing date so long as they submitted a portion of the application
on time, appellant failed to present any credible evidence to support
his contention. Moreover, the record indicates that as long as the
responsible management official has been forwarding application packages,
no incomplete package had ever been forwarded to the rating panel.
In addition to failing to present evidence of pretext, the agency found
that appellant failed to present any credible evidence of discriminatory
animus. Accordingly, the agency found that appellant failed to establish
discrimination based upon sex, age or reprisal.
Appellant Resigned his Collateral Duties as an EEO Counselor
The agency found that appellant failed to present a prima facie case of
discrimination based upon reprisal since appellant failed to allege that
he was forced to resign his duties, but rather stated that he voluntarily
resigned because of the alleged reprisal actions. In addition, the agency
determined that appellant's vague description of reprisal actions failed
to support his claim. For example, appellant claimed that he resigned
because of reprisal actions which included: (1) the failure by management
and personnel to cooperate with him in providing personnel documents to do
his job as an EEO Counselor; and (2) the EEO Manager's interference with
the performance of appellant's duties as EEO Counselor by taking away
the resolution process from all EEO Counselors. The agency essentially
found that the record evidence did not support a finding of constructive
discharge with respect to appellant's EEO Counseling duties. Accordingly,
the agency determined that appellant failed to prove reprisal.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission finds
that the agency, in all material respects, except as provided below,
accurately set forth the relevant facts and properly analyzed the case
using the appropriate regulations, policies, and laws.
With respect to the work team issue, we disagree with the agency's
analysis. We find that the record indicates that appellant never intended
to raise this as an allegation, but rather considered it facts in support
of his reprisal allegation. The appellant testified as follows:
Q: And then as far as this issue, what would it take to resolve this
particular issue? Or do you feel that this particular issue may be
moot at this time?
A: I think it's moot at this time. Again, I think it's just supportive
of the reprisal issues. And my ultimate resolution is to receive the
upgrade that I was awarded. And this demonstrates the failure of the
Washington EEO Office to recognize the real complaints and issues in
this case. That's why I disagree with these issues. This is really a
supportive issue demonstrating the reprisal. It's not something that
can be resolved.
(Appellant's Testimony pg. 53.)
Even assuming appellant intended this issue to remain as an allegation,
we, nevertheless, find it moot. Accordingly, the merits of the claim
are not dispositive. EEOC Regulation 29 C.F.R. §1614.107(e) allows the
dismissal of a complaint or allegations therein when the issues raised
are moot. The issues raised in appellant's complaint can be considered
moot if: (1) it can be said with assurance that there is no reasonable
expectation that the alleged violation will recur; and (2) the interim
relief or events have completely and irrevocably eradicated the effects of
the alleged violation. See County of Los Angeles v. Davis, 440 U.S. 625
(1979); See also Heginbothan v. Department of Defense, EEOC Appeal
No. 01955132 (March 7, 1996)(holding that appellant's retirement makes
it impossible to redress the denial of opportunity of which appellant
complains).
The undisputed record indicates that in response to a national performance
review of all the federal agencies, the agency started volunteer work
teams to address issues such as employee environment and work relations.
Appellant volunteered for one of the teams that was headed up by PC.
The undisputed record further indicates that this work team was short
lived and is no longer operating. As appellant similarly noted, we find
that the cancellation of the work team makes it impossible to redress
this allegation.<5> (See Appellant's Testimony pgs. 52-53.) Moreover,
we find that there is no reasonable expectation that the alleged violation
will recur.
Furthermore, we have considered appellant's assertion that this allegation
is supportive of his other reprisal claims. However, after considering
the work team allegation in conjunction with all allegations herein, we
remain unpersuaded that the agency's actions were motivated by reprisal
or discriminatory animus.
While the agency failed to directly address three spin-off allegations,
we find that for the reasons set forth herein above, the following
allegations were properly dismissed: (1) in or about winter/spring of
1994, the former EEO Manager interfered with the resolution of appellant's
EEO case; (2) in or about winter/spring of 1994, the former EEO Manager
failed to assign appellant an EEO Counselor within the 45-day time frame;
and (3) in or about winter/spring of 1994, the former EEO Manager breached
appellant's confidentiality and denied him the right to remain anonymous
on Complaint No. 2. See Kleinman v. U.S. Postal Service, EEOC Request
No. 05940579 (September 22, 1994); Story v. U.S. Postal Service, EEOC
Appeal No. 01965883 (March 13, 1997).
Appellant spends a considerable time in his appeal re-stating arguments
made previously or criticizing the agency's interpretation of the facts.
The Commission has exhaustively reviewed the entire case file, including
appellant's arguments on appeal. Viewing the record as a whole, we
find no credible evidence of discriminatory animus, but rather supported
accusations from appellant. Accordingly, we hereby AFFIRM the agency's
finding of no discrimination.
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. 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 (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:
9/16/99
_______________ _________________________________
DATE Carlton M. Hadden, Acting Director
1This allegation was initially dismissed by the agency for untimeliness.
However, on appeal, the Commission remanded the allegation to the
agency and ordered it to address the possibility of a continuing
violation and to clarify the issues alleged. See Francis v. Interior,
EEOC Appeal No. 01950568 (July 13, 1995).
2In response to the Commission's remand, these additional allegations
were accepted by the agency and given a separate docket number (079R)
(hereinafter "Complaint No. 3").
3In addition to reprisal as a basis for this allegation, appellant also
claims sex discrimination.
4All age references pertain to the time of the Complaint.
5We note that appellant states in the record that he is not seeking
compensatory damages, but rather that his position be upgraded. | [
"Martinez v. Department of Defense, EEOC Request No. 05950499 (August 1, 1996)",
"Guba v. Army, EEOC Request No. 05970635 (February 11, 1999)",
"Peets v. United States Postal Service, EEOC Request No. 05950725 (March 28, 1996)",
"Kleinman v. U.S. Postal Service, EEOC Request No. 05940579 (September 22, 1994)"... | [
-0.06074128672480583,
0.08279702067375183,
-0.004659001249819994,
-0.047904759645462036,
-0.0032520086970180273,
0.0945238396525383,
0.003036164678633213,
0.02398272231221199,
-0.036083515733480453,
0.04510479047894478,
0.033725496381521225,
-0.02606794983148575,
0.001199847087264061,
0.00... | |
192 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120083009.txt | 0120083009.txt | TXT | text/plain | 10,659 | Monica R. Sookdeo, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency. | May 7, 2008 | Appeal Number: 0120083009
Legal Analysis:
The Commission reversed the agency's dismissal
for untimely EEO contact. In strikingly similar facts, the complainant
in Dowdy contended that when she informed the supervisor of the alleged
sexual harassment, he stated he would contact the EEO office to see how
to proceed. In light of this, it ruled that the complainant exhibited
her intent to begin the EEO process when she contacted her superior
about her concerns on January 11, 2008.
Like in Dowdy, we find sufficient reason to extend the time limit to
initiate EEO counseling. Complainant wrote that the supervisor said
he would call EEO office to see what proper steps needed to be taken
to start the process, and there is no statement in the record by the
supervisor denying this. The Commander's Inquiry followed shortly
thereafter, likely creating more confusion in complainant's mind.
We find that the agency unintentionally misled complainant to believe
the EEO process had been initiated on January 11, 2008.
Final Decision:
Accordingly, the FAD is reversed. | Monica R. Sookdeo,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120083009
Agency No. ARCARSON08MAR01357
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision (FAD) dated May 7, 2008, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. In her
complaint, complainant alleged that she was subjected to discrimination
based on her sex (female) when she was sexually harassed by a co-worker
from December 26, 2007 to January 10, 2008. At the time of her complaint,
complainant served as a health systems technician.
The FAD dismissed the complaint for failure to timely initiate contact
with an EEO counselor. It reasoned that complainant initiated this
contact on March 17, 2008, beyond the 45 calendar day time limit for
doing so. 29 C.F.R. § 1614.105(a)(1) and .107(a)(2).
Complainant spoke to a manager on or about January 11 and 14, 2008,
which the agency's opposition to complainant's appeal identifies as
her supervisor, about the alleged sexual harassment. According to
complainant, the supervisor responded that he would call EEO office
to see what proper steps needed to be taken to start the process.
Thereafter, on January 30, 2008, complainant was notified that there
would be a Commander's Inquiry of her claim. While this was an internal
administrative investigation, complainant informed the EEO counselor that
she believed it was an EEO investigation. When complainant learned on
March 17, 2008, that the Commander's Inquiry concluded without a finding
of harassment, she contacted an EEO counselor the same day.
According to what appears to be EEO counselor notes, the supervisor said
that in response to complainant's claims that he called an EEO counselor
outside complainant's presence to learn of his responsibilities, and
never told complainant this covered her. According to the EEO counselor,
complainant said the supervisor called the EEO office to see what he
should do as a manager about sexual harassment in the workplace.
The time limit to initiate contact with an EEO counselor can be
extended for reasons considered sufficient by the agency or Commission.
29 C.F.R. § 1614.105(a)(2). Complainant argues that she believed the EEO
process commenced upon her contact with her supervisor. In opposition
to complainant's appeal, the agency argues that the supervisor's actions
should not extend the time limit to initiate EEO counseling because
he contacted an EEO counselor to learn of his responsibilities, and
never told her she was covered by his contact. The agency argues that
nothing about the Commander's Inquiry should have confused complainant
into believing it was an EEO investigation.
Dowdy v. Department of the Army, EEOC Appeal No. 0120083106 (September
19, 2008), concerned a sexual harassment complaint by a co-worker
of complainant who had the same supervisor and involved the same
alleged perpetrator. The Commission reversed the agency's dismissal
for untimely EEO contact. In strikingly similar facts, the complainant
in Dowdy contended that when she informed the supervisor of the alleged
sexual harassment, he stated he would contact the EEO office to see how
to proceed. In light of this, it ruled that the complainant exhibited
her intent to begin the EEO process when she contacted her superior
about her concerns on January 11, 2008.
Like in Dowdy, we find sufficient reason to extend the time limit to
initiate EEO counseling. Complainant wrote that the supervisor said
he would call EEO office to see what proper steps needed to be taken
to start the process, and there is no statement in the record by the
supervisor denying this. The Commander's Inquiry followed shortly
thereafter, likely creating more confusion in complainant's mind.
We find that the agency unintentionally misled complainant to believe
the EEO process had been initiated on January 11, 2008.
Accordingly, the FAD is reversed.
ORDER (E0408)
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 (K0408)
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 (M0408)
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 (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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
with the
Court 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 3, 2008
__________________
Date
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
| [
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"29 C.F.R. § 1614.503(g)",
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193 | https://www.eeoc.gov/sites/default/files/decisions/2022_01_12/2021004214.pdf | 2021004214.pdf | PDF | application/pdf | 10,211 | Britt S .,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. | July 15, 2021 | Appeal Number: 2021004214
Background:
During the relevant time , Complainant worked for the Agency as a Medical Support Assistant,
GS-5, in Los Angeles, California.
On February 4, 2021, Complainant initiated EEO Counselor contact. Informal efforts to resolve
her concerns were not successful.
On May 11, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on disability when:
1. From on or about February 11, 2019, Complainant's leave request was delayed
until March 11, 2019; and
2. On or about April 4, 2019, Complainant was terminated from her position with
the Agency.
In its July 15, 2021 final decision, the Agency dismissed th e formal complaint for untimely EEO
Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). Specifically, the Agency deter mined
that Complainant initiated contact with an EEO Counselor on February 4, 2021 regarding events which occurred in February and April of 2019, more than forty -five days after the alleged
discriminatory events occurred. The Agency further provide affida vit testimony from the
Agency's EEO Manager that an EEO poster containing relevant EEO contact information and timeframes was on display at Complainant's workplace.
On appeal, Complainant does not dispute the Agency's dismissal of the instant matter for
untimely EEO Counselor contact. Rather, Complainant contends that she was unable to contact an EEO Counselor in a timely manner due to her medical condition.
The instant appeal followed.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.105(a) (1) requires that complaints of discrimination should
be brought to the attention of the Equal Employment Opportunity Counselor within forty -five
(45) days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within forty -five (45) days of the effective date of the action.
Here, the most recent alleged discriminatory event occurred on April 4, 2019, but Complainan t
did not initiate contact with an EEO Counselor until nearly two years later on February 4, 2021, well b eyond the 45- day limitation period. The record indicates that Complainant had at least
constructive notice of the relev ant time limit as the Agency provided an affidavit from the EEO
Manager at Complainant's former work facility that states that an EEO po ster was prominently
on display at the facility where Complainant worked. The EEO Manager also stated that Complainant attended Prevention of Workplace Harassment/ No Fear Act training on July 14,
2014. The EEO Manager stated that both trainings provided a ll participants, including
Complainant, information about the requisite 45 -day requirement for initiating EEO contact.
EEOC regulations provide that the Agency or the Commission shall extend the time limits when
the indiv idual shows that she was not not ified of the time limits and was not otherwise aware of
them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevent ed by
circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the Agency or the Commission.
On appeal , Complainant asserts that her “declining health” prevented from pursuing the EEO
process in 2019 when the cl aims 1 and 2 arose .
Specifically, Complainant stated that in January 2020, she suffered a stroke which rendered her
unable to meet the regulatory guidelines for EEO Counselor contact. When a complainant
claim s that a physical condition prevents her from meeting a particular filing deadline, we have
held that in order to justify an untimely filing, the complainant must be so incapacitated by the condition as to render her physically unable to make a timely fili ng. See Zelmer v. USPS, EEOC
Request No. 05890164 (March 8, 1989). The same is true regarding claims of incapacity related to psychiatric or psychological conditions. See Crear v. USPS , EEOC Request No. 05920700
(October 29, 1992). There is nothing in the record, such as medical documentation, support ing
Complainant's assertion that she was so incapacitated during the applicable forty -five-day period
as to prevent her from timely initiating EEO Counselor contact.
Complainant, therefore, has not presented any persuasive arguments or evidence warranting an
extension of the time limit for initiating EEO Counselor contact. See 29 C.F.R. § 1614.604(c). The Agency properly dismissed the instant complaint for untimely EEO Counselor contact. | Britt S .,1
Complainant,
v.
Denis R. McDonough,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 2021004214
Agency No. 200P-0691-2021102102
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated July 15, 2021, dismissing a formal
complaint alleging unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
During the relevant time , Complainant worked for the Agency as a Medical Support Assistant,
GS-5, in Los Angeles, California.
On February 4, 2021, Complainant initiated EEO Counselor contact. Informal efforts to resolve
her concerns were not successful.
On May 11, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on disability when:
1. From on or about February 11, 2019, Complainant's leave request was delayed
until March 11, 2019; and
2. On or about April 4, 2019, Complainant was terminated from her position with
the Agency.
In its July 15, 2021 final decision, the Agency dismissed th e formal complaint for untimely EEO
Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). Specifically, the Agency deter mined
that Complainant initiated contact with an EEO Counselor on February 4, 2021 regarding events which occurred in February and April of 2019, more than forty -five days after the alleged
discriminatory events occurred. The Agency further provide affida vit testimony from the
Agency's EEO Manager that an EEO poster containing relevant EEO contact information and timeframes was on display at Complainant's workplace.
On appeal, Complainant does not dispute the Agency's dismissal of the instant matter for
untimely EEO Counselor contact. Rather, Complainant contends that she was unable to contact an EEO Counselor in a timely manner due to her medical condition.
The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.105(a) (1) requires that complaints of discrimination should
be brought to the attention of the Equal Employment Opportunity Counselor within forty -five
(45) days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within forty -five (45) days of the effective date of the action.
Here, the most recent alleged discriminatory event occurred on April 4, 2019, but Complainan t
did not initiate contact with an EEO Counselor until nearly two years later on February 4, 2021, well b eyond the 45- day limitation period. The record indicates that Complainant had at least
constructive notice of the relev ant time limit as the Agency provided an affidavit from the EEO
Manager at Complainant's former work facility that states that an EEO po ster was prominently
on display at the facility where Complainant worked. The EEO Manager also stated that Complainant attended Prevention of Workplace Harassment/ No Fear Act training on July 14,
2014. The EEO Manager stated that both trainings provided a ll participants, including
Complainant, information about the requisite 45 -day requirement for initiating EEO contact.
EEOC regulations provide that the Agency or the Commission shall extend the time limits when
the indiv idual shows that she was not not ified of the time limits and was not otherwise aware of
them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevent ed by
circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the Agency or the Commission.
On appeal , Complainant asserts that her “declining health” prevented from pursuing the EEO
process in 2019 when the cl aims 1 and 2 arose .
Specifically, Complainant stated that in January 2020, she suffered a stroke which rendered her
unable to meet the regulatory guidelines for EEO Counselor contact. When a complainant
claim s that a physical condition prevents her from meeting a particular filing deadline, we have
held that in order to justify an untimely filing, the complainant must be so incapacitated by the condition as to render her physically unable to make a timely fili ng. See Zelmer v. USPS, EEOC
Request No. 05890164 (March 8, 1989). The same is true regarding claims of incapacity related to psychiatric or psychological conditions. See Crear v. USPS , EEOC Request No. 05920700
(October 29, 1992). There is nothing in the record, such as medical documentation, support ing
Complainant's assertion that she was so incapacitated during the applicable forty -five-day period
as to prevent her from timely initiating EEO Counselor contact.
Complainant, therefore, has not presented any persuasive arguments or evidence warranting an
extension of the time limit for initiating EEO Counselor contact. See 29 C.F.R. § 1614.604(c). The Agency properly dismissed the instant complaint for untimely EEO Counselor contact.
CONCLUSION
The Agency's final decision dismissing Complainant's complaint is AFFIRMED for the reasons
set forth herein .
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0920)
The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that:
1. The appellate decision involved a clearly erroneous inter pretation 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thir ty (30) calendar days of receipt of this decision. If the party requesting
reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration . A party shall h ave twenty
(20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in oppos ition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO M D-110), at Chap. 9 § VII.B
(Aug. 5, 2015).
Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx
Alternatively, Complainant can submit his or her request and arguments to the Director, Office
of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to
reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s
Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request
and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of
service is required.
Failure to file w ithin the 30 -day time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (S0610)
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 you r 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 act ion, filing a civil action will terminate the
admin istrative processing of your complaint .
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying the se fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of cour t costs or appointment of an attorney directly to t he court, not the Commission. The
court has the sole discretion to grant or deny these types of requests.
Such requests do not alter the time limits for filing a civil action (please read the paragraph tit led
Complainant’s Right to File a Civil Action fo r the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
October 28, 2021
Date | [
"Zelmer v. USPS, EEOC Request No. 05890164 (March 8, 1989)",
"Crear v. USPS , EEOC Request No. 05920700 (October 29, 1992)",
"29 C.F.R. § 1614.107(a)",
"29 C.F.R. § 1614.105(a)",
"29 C.F.R. § 1614.604(c)",
"29 C.F.R. § 1614.405",
"29 C.F.R. § 1614.604",
"29 C.F.R. § 1614.403(g)",
"29 U.S.C. § 791"
] | [
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194 | https://www.eeoc.gov/sites/default/files/decisions/2022_03_02/2021004214.pdf | 2021004214.pdf | PDF | application/pdf | 10,211 | Britt S .,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. | July 15, 2021 | Appeal Number: 2021004214
Background:
During the relevant time , Complainant worked for the Agency as a Medical Support Assistant,
GS-5, in Los Angeles, California.
On February 4, 2021, Complainant initiated EEO Counselor contact. Informal efforts to resolve
her concerns were not successful.
On May 11, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on disability when:
1. From on or about February 11, 2019, Complainant's leave request was delayed
until March 11, 2019; and
2. On or about April 4, 2019, Complainant was terminated from her position with
the Agency.
In its July 15, 2021 final decision, the Agency dismissed th e formal complaint for untimely EEO
Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). Specifically, the Agency deter mined
that Complainant initiated contact with an EEO Counselor on February 4, 2021 regarding events which occurred in February and April of 2019, more than forty -five days after the alleged
discriminatory events occurred. The Agency further provide affida vit testimony from the
Agency's EEO Manager that an EEO poster containing relevant EEO contact information and timeframes was on display at Complainant's workplace.
On appeal, Complainant does not dispute the Agency's dismissal of the instant matter for
untimely EEO Counselor contact. Rather, Complainant contends that she was unable to contact an EEO Counselor in a timely manner due to her medical condition.
The instant appeal followed.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.105(a) (1) requires that complaints of discrimination should
be brought to the attention of the Equal Employment Opportunity Counselor within forty -five
(45) days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within forty -five (45) days of the effective date of the action.
Here, the most recent alleged discriminatory event occurred on April 4, 2019, but Complainan t
did not initiate contact with an EEO Counselor until nearly two years later on February 4, 2021, well b eyond the 45- day limitation period. The record indicates that Complainant had at least
constructive notice of the relev ant time limit as the Agency provided an affidavit from the EEO
Manager at Complainant's former work facility that states that an EEO po ster was prominently
on display at the facility where Complainant worked. The EEO Manager also stated that Complainant attended Prevention of Workplace Harassment/ No Fear Act training on July 14,
2014. The EEO Manager stated that both trainings provided a ll participants, including
Complainant, information about the requisite 45 -day requirement for initiating EEO contact.
EEOC regulations provide that the Agency or the Commission shall extend the time limits when
the indiv idual shows that she was not not ified of the time limits and was not otherwise aware of
them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevent ed by
circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the Agency or the Commission.
On appeal , Complainant asserts that her “declining health” prevented from pursuing the EEO
process in 2019 when the cl aims 1 and 2 arose .
Specifically, Complainant stated that in January 2020, she suffered a stroke which rendered her
unable to meet the regulatory guidelines for EEO Counselor contact. When a complainant
claim s that a physical condition prevents her from meeting a particular filing deadline, we have
held that in order to justify an untimely filing, the complainant must be so incapacitated by the condition as to render her physically unable to make a timely fili ng. See Zelmer v. USPS, EEOC
Request No. 05890164 (March 8, 1989). The same is true regarding claims of incapacity related to psychiatric or psychological conditions. See Crear v. USPS , EEOC Request No. 05920700
(October 29, 1992). There is nothing in the record, such as medical documentation, support ing
Complainant's assertion that she was so incapacitated during the applicable forty -five-day period
as to prevent her from timely initiating EEO Counselor contact.
Complainant, therefore, has not presented any persuasive arguments or evidence warranting an
extension of the time limit for initiating EEO Counselor contact. See 29 C.F.R. § 1614.604(c). The Agency properly dismissed the instant complaint for untimely EEO Counselor contact. | Britt S .,1
Complainant,
v.
Denis R. McDonough,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 2021004214
Agency No. 200P-0691-2021102102
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated July 15, 2021, dismissing a formal
complaint alleging unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
During the relevant time , Complainant worked for the Agency as a Medical Support Assistant,
GS-5, in Los Angeles, California.
On February 4, 2021, Complainant initiated EEO Counselor contact. Informal efforts to resolve
her concerns were not successful.
On May 11, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on disability when:
1. From on or about February 11, 2019, Complainant's leave request was delayed
until March 11, 2019; and
2. On or about April 4, 2019, Complainant was terminated from her position with
the Agency.
In its July 15, 2021 final decision, the Agency dismissed th e formal complaint for untimely EEO
Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). Specifically, the Agency deter mined
that Complainant initiated contact with an EEO Counselor on February 4, 2021 regarding events which occurred in February and April of 2019, more than forty -five days after the alleged
discriminatory events occurred. The Agency further provide affida vit testimony from the
Agency's EEO Manager that an EEO poster containing relevant EEO contact information and timeframes was on display at Complainant's workplace.
On appeal, Complainant does not dispute the Agency's dismissal of the instant matter for
untimely EEO Counselor contact. Rather, Complainant contends that she was unable to contact an EEO Counselor in a timely manner due to her medical condition.
The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.105(a) (1) requires that complaints of discrimination should
be brought to the attention of the Equal Employment Opportunity Counselor within forty -five
(45) days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within forty -five (45) days of the effective date of the action.
Here, the most recent alleged discriminatory event occurred on April 4, 2019, but Complainan t
did not initiate contact with an EEO Counselor until nearly two years later on February 4, 2021, well b eyond the 45- day limitation period. The record indicates that Complainant had at least
constructive notice of the relev ant time limit as the Agency provided an affidavit from the EEO
Manager at Complainant's former work facility that states that an EEO po ster was prominently
on display at the facility where Complainant worked. The EEO Manager also stated that Complainant attended Prevention of Workplace Harassment/ No Fear Act training on July 14,
2014. The EEO Manager stated that both trainings provided a ll participants, including
Complainant, information about the requisite 45 -day requirement for initiating EEO contact.
EEOC regulations provide that the Agency or the Commission shall extend the time limits when
the indiv idual shows that she was not not ified of the time limits and was not otherwise aware of
them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevent ed by
circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the Agency or the Commission.
On appeal , Complainant asserts that her “declining health” prevented from pursuing the EEO
process in 2019 when the cl aims 1 and 2 arose .
Specifically, Complainant stated that in January 2020, she suffered a stroke which rendered her
unable to meet the regulatory guidelines for EEO Counselor contact. When a complainant
claim s that a physical condition prevents her from meeting a particular filing deadline, we have
held that in order to justify an untimely filing, the complainant must be so incapacitated by the condition as to render her physically unable to make a timely fili ng. See Zelmer v. USPS, EEOC
Request No. 05890164 (March 8, 1989). The same is true regarding claims of incapacity related to psychiatric or psychological conditions. See Crear v. USPS , EEOC Request No. 05920700
(October 29, 1992). There is nothing in the record, such as medical documentation, support ing
Complainant's assertion that she was so incapacitated during the applicable forty -five-day period
as to prevent her from timely initiating EEO Counselor contact.
Complainant, therefore, has not presented any persuasive arguments or evidence warranting an
extension of the time limit for initiating EEO Counselor contact. See 29 C.F.R. § 1614.604(c). The Agency properly dismissed the instant complaint for untimely EEO Counselor contact.
CONCLUSION
The Agency's final decision dismissing Complainant's complaint is AFFIRMED for the reasons
set forth herein .
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0920)
The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that:
1. The appellate decision involved a clearly erroneous inter pretation 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thir ty (30) calendar days of receipt of this decision. If the party requesting
reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration . A party shall h ave twenty
(20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in oppos ition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO M D-110), at Chap. 9 § VII.B
(Aug. 5, 2015).
Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx
Alternatively, Complainant can submit his or her request and arguments to the Director, Office
of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to
reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s
Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request
and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of
service is required.
Failure to file w ithin the 30 -day time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (S0610)
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 you r 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 act ion, filing a civil action will terminate the
admin istrative processing of your complaint .
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying the se fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of cour t costs or appointment of an attorney directly to t he court, not the Commission. The
court has the sole discretion to grant or deny these types of requests.
Such requests do not alter the time limits for filing a civil action (please read the paragraph tit led
Complainant’s Right to File a Civil Action fo r the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
October 28, 2021
Date | [
"Zelmer v. USPS, EEOC Request No. 05890164 (March 8, 1989)",
"Crear v. USPS , EEOC Request No. 05920700 (October 29, 1992)",
"29 C.F.R. § 1614.107(a)",
"29 C.F.R. § 1614.105(a)",
"29 C.F.R. § 1614.604(c)",
"29 C.F.R. § 1614.405",
"29 C.F.R. § 1614.604",
"29 C.F.R. § 1614.403(g)",
"29 U.S.C. § 791"
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0.031... |
195 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A35320_r.txt | 01A35320_r.txt | TXT | text/plain | 9,737 | Ernest N. Candelaria, Jr. v. United States Postal Service 01A35320 December 18, 2003 . Ernest N. Candelaria, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. | December 18, 2003 | Appeal Number: 01A35320
Case Facts:
Complainant filed a timely appeal with this Commission from the final
agency decision dated August 5, 2003, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
In his formal complaint filed on May 2, 2003, complainant alleged
that he was subjected to discrimination on the bases of sex, national
origin, age, disability and in reprisal for prior EEO activity when
beginning in 1999 through June 28, 2002, a former Bulk Mail Center
Manager unreasonably interfered with his work performance and created
a hostile work environment for him.<1>
In its final decision dated August 5, 2003, the agency dismissed the
complaint for untimely EEO Counselor contact. Specifically, the agency
found that complainant's initial EEO Counselor contact occurred on
August 22, 2002, and was more than forty-five days after the dates of
the alleged incidents.
On appeal, complainant argues that he initiated EEO contact before the
August 22, 2002 date as the agency determined in its final decision.
Complainant further argues that the last alleged discriminatory event
of June 28, 2002 was only an approximation because he informed the
Counselor that it was the date of the Plant Manager's last day on site
at the agency's Denver facility but that the Counselor and the Acting
Manager failed to verify the date that the Plant Manager was on site.
Complainant further contends that the Acting Manager waived the forty-five
-day time limitation period after he explained to him the inconvenience he
went through to initiate EEO contact because the EEO posters on display
at his work site did not contain a mailing address.
In response, with respect to complainant's argument that the period
of alleged discrimination should be extended because there was a
possibility that the Plant Manager was still on site, the agency found
that there was no showing that the Manager did anything that would have
caused complainant to be aggrieved after June 28, 2002. The agency
further contends that the Acting Manager had no authorization to waive
time limits in the instant case. The agency further argues that all
EEO posters back from 1999 to present contained a mailing address.
In support of its argument, the agency submits copies of "Memorandums
For: Supervisors, Managers and Postmasters," signed and dated by several
management officials confirming the posting of updated EEO posters
in complainant's workplace during the relevant period. The agency
further argues that complainant had access to forms on the agency's
Intranet and could have mailed them to the address on the EEO poster
and that the forms would have been forwarded to the new agency office.
Furthermore, the agency argues that as a supervisor and having filed
prior EEO complaints, complainant was familiar with the EEO process.
The record contains a copy of Information for Pre-Complaint Counseling and
the agency's final interview letter to complainant dated April 11, 2003.
Therein, the record reveals that complainant initiated EEO contact on
August 13, 2002.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action.
The record in this case reflects that complainant's initial EEO Counselor
contact occurred on August 13, 2002, instead of August 22, 2002, as
determined by the agency in its final decision. Irrespective of the
earlier EEO Counselor contact date of August 13, 2002, the Commission
determines that complainant nonetheless initiated untimely Counselor
contact. The record supports a determination that the last date of
alleged discriminatory conduct occurred on June 28, 2002, and we are
unpersuaded by complainant's assertions that any alleged discriminatory
conduct occurred subsequent to this date, merely on the supposition that
the alleged discriminating employee may have been on site subsequent
to that date. Assuming that the latest date that alleged discriminatory
activity occurred was on June 28, 2002, complainant's initial EEO contact
on August 13, 2002, is beyond the forty-five-day limitation period.
Further, the agency presented evidence that the time limit and process
for contacting an EEO Counselor were conveyed to the employees. It is
the Commission's policy that constructive knowledge will be imputed to
an employee when an employer has fulfilled its obligation of informing
employees of their rights and obligations under Title VII. Thompson
v. Department of the Army, EEOC Request 05910474 (September 12, 1991).
Finally, in the EEO Counselor's report, complainant indicated that
he did not pursue the EEO complaint process earlier because of fear
of reprisal from the former Bulk Mail Center Manager. The Commission
has determined that fear or reprisal, without more, will not toll the
applicable EEO time limitations. Croft v. Department of the Army,
EEOC Request No. 05970699 (August 1, 1997). Complainant has presented
no persuasive arguments or evidence warranting an extension of the time
limit for initiating EEO Counselor contact.
Final Decision:
Accordingly, the agency's final decision dismissing complainant's complaint is AFFIRMED. | Ernest N. Candelaria, Jr. v. United States Postal Service
01A35320
December 18, 2003
.
Ernest N. Candelaria, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A35320
Agency No. 1E-802-0002-03
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated August 5, 2003, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
In his formal complaint filed on May 2, 2003, complainant alleged
that he was subjected to discrimination on the bases of sex, national
origin, age, disability and in reprisal for prior EEO activity when
beginning in 1999 through June 28, 2002, a former Bulk Mail Center
Manager unreasonably interfered with his work performance and created
a hostile work environment for him.<1>
In its final decision dated August 5, 2003, the agency dismissed the
complaint for untimely EEO Counselor contact. Specifically, the agency
found that complainant's initial EEO Counselor contact occurred on
August 22, 2002, and was more than forty-five days after the dates of
the alleged incidents.
On appeal, complainant argues that he initiated EEO contact before the
August 22, 2002 date as the agency determined in its final decision.
Complainant further argues that the last alleged discriminatory event
of June 28, 2002 was only an approximation because he informed the
Counselor that it was the date of the Plant Manager's last day on site
at the agency's Denver facility but that the Counselor and the Acting
Manager failed to verify the date that the Plant Manager was on site.
Complainant further contends that the Acting Manager waived the forty-five
-day time limitation period after he explained to him the inconvenience he
went through to initiate EEO contact because the EEO posters on display
at his work site did not contain a mailing address.
In response, with respect to complainant's argument that the period
of alleged discrimination should be extended because there was a
possibility that the Plant Manager was still on site, the agency found
that there was no showing that the Manager did anything that would have
caused complainant to be aggrieved after June 28, 2002. The agency
further contends that the Acting Manager had no authorization to waive
time limits in the instant case. The agency further argues that all
EEO posters back from 1999 to present contained a mailing address.
In support of its argument, the agency submits copies of "Memorandums
For: Supervisors, Managers and Postmasters," signed and dated by several
management officials confirming the posting of updated EEO posters
in complainant's workplace during the relevant period. The agency
further argues that complainant had access to forms on the agency's
Intranet and could have mailed them to the address on the EEO poster
and that the forms would have been forwarded to the new agency office.
Furthermore, the agency argues that as a supervisor and having filed
prior EEO complaints, complainant was familiar with the EEO process.
The record contains a copy of Information for Pre-Complaint Counseling and
the agency's final interview letter to complainant dated April 11, 2003.
Therein, the record reveals that complainant initiated EEO contact on
August 13, 2002.
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action.
The record in this case reflects that complainant's initial EEO Counselor
contact occurred on August 13, 2002, instead of August 22, 2002, as
determined by the agency in its final decision. Irrespective of the
earlier EEO Counselor contact date of August 13, 2002, the Commission
determines that complainant nonetheless initiated untimely Counselor
contact. The record supports a determination that the last date of
alleged discriminatory conduct occurred on June 28, 2002, and we are
unpersuaded by complainant's assertions that any alleged discriminatory
conduct occurred subsequent to this date, merely on the supposition that
the alleged discriminating employee may have been on site subsequent
to that date. Assuming that the latest date that alleged discriminatory
activity occurred was on June 28, 2002, complainant's initial EEO contact
on August 13, 2002, is beyond the forty-five-day limitation period.
Further, the agency presented evidence that the time limit and process
for contacting an EEO Counselor were conveyed to the employees. It is
the Commission's policy that constructive knowledge will be imputed to
an employee when an employer has fulfilled its obligation of informing
employees of their rights and obligations under Title VII. Thompson
v. Department of the Army, EEOC Request 05910474 (September 12, 1991).
Finally, in the EEO Counselor's report, complainant indicated that
he did not pursue the EEO complaint process earlier because of fear
of reprisal from the former Bulk Mail Center Manager. The Commission
has determined that fear or reprisal, without more, will not toll the
applicable EEO time limitations. Croft v. Department of the Army,
EEOC Request No. 05970699 (August 1, 1997). Complainant has presented
no persuasive arguments or evidence warranting an extension of the time
limit for initiating EEO Counselor contact.
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
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 18, 2003
__________________
Date
1The record reveals that the named Bulk Mail
Center Manager is also referenced as a Plant Manager.
| [
"Croft v. Department of the Army, EEOC Request No. 05970699 (August 1, 1997)",
"29 C.F.R. § 1614.105(a)",
"29 C.F.R. § 1614.405",
"29 C.F.R. § 1614.604",
"29 C.F.R. § 1614.604(c)",
"42 U.S.C. § 2000e",
"29 U.S.C. § 791",
"29 U.S.C. § 621",
"29 U.S.C. §§ 791"
] | [
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0.05160055309534073,
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0.029... |
196 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a52531_r.txt | 01a52531_r.txt | TXT | text/plain | 10,341 | Susan C. Beckwith v. Department of Veterans Affairs 01A52531 July 28, 2005 . Susan C. Beckwith, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency. | July 28, 2005 | Appeal Number: 01A52531
Case Facts:
Complainant filed a timely appeal with this Commission from the final
agency decision dated January 20, 2005, dismissing her formal EEO
complaint of unlawful employment discrimination in violation of Title VII
of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e
et seq. , Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq., the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.,
and the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d) et seq.
Complainant, a Nurse Practitioner, filed the instant formal complaint
on October 5, 2004.
On January 20, 2005, the agency issued a final decision. Therein,
the agency determined that complainant claimed that she was the victim
of unlawful employment discrimination on the bases of age, disability,
and reprisal (previous EEO complaints) with respect to Equal Pay. The
agency also determined that the instant complaint was comprised of the
following claim:
On or about June 29, 2004, management hired two Mental Health Nurse
Practitioners and compensated their salary through a special pay band
that you are not provided.
The agency dismissed complainant's complaint on the grounds of abuse
of process. The agency stated that complainant filed five EEO
complaints from June 2002 to the filing of the instant complaint,
regarding non-selection and equal pay; and that all five complaints
raise duplicative and redundant claims of non-selection and/or Equal
Pay Act (EPA)/compensation. The agency stated that these claims are
inextricably intertwined and that none of the complaints resulted in
a finding of discrimination or retaliation by the Commission or a United
States District Court.
The agency noted that two complaints addressing the above referenced
matters were consolidated, that an Administrative Judge (AJ) found no
discrimination in a decision dated July 28, 2004, and that the agency
implemented the AJ's decision on August 30, 2004.<1>
The agency also asserted that complainant filed an untimely formal EEO
complaint, identified as Agency No. 2003-066-2004100420. The agency
found that complainant was knowledgeable of the EEO process because
she had previously filed timely EEO complaints, the only reason that
complainant filed Agency No. 2003-066-2004100420 in an untimely fashion
was to overburden the EEO system.
The agency identified a fourth formal complaint, Agency
No. 2003-0666-2004101458, wherein complainant alleged she was not referred
or selected to a position and that those selectees were provided special
pay bands, which she was not provided. The agency determined that
Agency No. 2003-0666-2004101458 reflected an abuse of process because
complainant did not even apply for the position in question. The agency
noted that this complaint was dismissed for failure to state a claim,
on May 4, 2004.
Finally, regarding the fifth and instant complaint, the agency determined
that complainant did not apply for the Mental Health Nurse Practitioner
positions identified in the complaint, and that it was properly dismissed
on the grounds of abuse of process.
The agency may dismiss complaints that exhibit a clear pattern of misuse
of the EEO process for a purpose other than the prevention and elimination
of employment discrimination. 29 C.F.R. § 1614.107(a)(9). A clear pattern
of abuse of process requires: (i) evidence of multiple complaints filings;
and (ii) allegations that are similar or identical, lack specificity or
involved matters previously resolved; or (iii) evidence of circumventing
other administrative processes, retaliating against the agency's in-house
administrative processes or overburdening the EEO complaint system. Id.
When dismissing cases for misuse of the EEO process, the agency
must strictly adhere to Commission case law regarding abuse of
process. Id. Application of the misuse of the EEO process standard must be
rare, because of the strong policy in favor of preserving a complainant's
EEO rights whenever possible. Equal Employment Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), 5-17, (November 9, 1999) (citing
Love v. Pullman, Inc., 404 U.S. 522 (1972)); Wren v. Equal Employment
Opportunity Commission, EEOC Appeal No. 01932105 (August 19, 1993).
Legal Analysis:
the Commission or a United
States District Court.
The agency noted that two complaints addressing the above referenced
matters were consolidated, that an Administrative Judge (AJ) found no
discrimination in a decision dated July 28, 2004, and that the agency
implemented the AJ's decision on August 30, 2004.<1>
The agency also asserted that complainant filed an untimely formal EEO
complaint, identified as Agency No. 2003-066-2004100420. The agency
found that complainant was knowledgeable of the EEO process because
she had previously filed timely EEO complaints, the only reason that
complainant filed Agency No. 2003-066-2004100420 in an untimely fashion
was to overburden the EEO system.
The agency identified a fourth formal complaint, Agency
No. 2003-0666-2004101458, wherein complainant alleged she was not referred
or selected to a position and that those selectees were provided special
pay bands, which she was not provided. The agency determined that
Agency No. 2003-0666-2004101458 reflected an abuse of process because
complainant did not even apply for the position in question. The agency
noted that this complaint was dismissed for failure to state a claim,
on May 4, 2004.
Finally, regarding the fifth and instant complaint, the agency determined
that complainant did not apply for the Mental Health Nurse Practitioner
positions identified in the complaint, and that it was properly dismissed
on the grounds of abuse of process.
The agency may dismiss complaints that exhibit a clear pattern of misuse
of the EEO process for a purpose other than the prevention and elimination
of employment discrimination. 29 C.F.R. § 1614.107(a)(9). A clear pattern
of abuse of process requires: (i) evidence of multiple complaints filings;
and (ii) allegations that are similar or identical, lack specificity or
involved matters previously resolved; or (iii) evidence of circumventing
other administrative processes, retaliating against the agency's in-house
administrative processes or overburdening the EEO complaint system. Id.
When dismissing cases for misuse of the EEO process, the agency
must strictly adhere to Commission case law regarding abuse of
process. Id. Application of the misuse of the EEO process standard must be
rare, because of the strong policy in favor of preserving a complainant's
EEO rights whenever possible. Equal Employment Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), 5-17, (November 9, 1999) (citing
Love v. Pullman, Inc., 404 U.S. 522 (1972)); Wren v. Equal Employment
Opportunity Commission, EEOC Appeal No. 01932105 (August 19, 1993).
Upon review, the Commission finds insufficient evidence to conclude
that complainant used the EEO process for the purpose of circumventing
administrative processes or overburdening the EEO system. The Commission
notes that although complainant filed four previous EEO complaints,
as cited by the agency, and that these complaints basically stated
common themes concerning non-selections and pay inequalities related
to the Physician Assistant position, the instant complaint concerns
a distinct, separate non-selection/ pay issue related to the Mental
Health Practitioner position. Moreover, we determine that neither the
numerosity nor the subject matter of complainant's claims in the five
cited EEO complaints evidences a clear intent by complainant to utilize
the EEO process for impermissible purposes.
However, although the Commission finds insufficient evidence that
complainant has misused the EEO process, we determine that this matter
is also appropriately analyzed in terms of whether it states a claim.
Complainant fails to indicate any loss of wages, benefits, or how she
otherwise suffered any injury with respect to a term, condition or
privilege of employment as a result of the agency's action. Rather,
complainant claimed that the agency should provide a special band with
a higher salary for her position (Nurse Practitioner) because of the
agency's improper hiring practices for a different position (Mental
Health Nurse Practitioner). We noted that complainant did not attempt
to apply for a Mental Health Nurse Practitioner position. Specifically,
in her formal complaint, complainant stated that she does not want to be
a Mental Health Nurse Practitioner, does not want to perform the duties
of that position. | Susan C. Beckwith v. Department of Veterans Affairs
01A52531
July 28, 2005
.
Susan C. Beckwith,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A52531
Agency No. 2003-0666-2004103896
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated January 20, 2005, dismissing her formal EEO
complaint of unlawful employment discrimination in violation of Title VII
of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e
et seq. , Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq., the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.,
and the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d) et seq.
Complainant, a Nurse Practitioner, filed the instant formal complaint
on October 5, 2004.
On January 20, 2005, the agency issued a final decision. Therein,
the agency determined that complainant claimed that she was the victim
of unlawful employment discrimination on the bases of age, disability,
and reprisal (previous EEO complaints) with respect to Equal Pay. The
agency also determined that the instant complaint was comprised of the
following claim:
On or about June 29, 2004, management hired two Mental Health Nurse
Practitioners and compensated their salary through a special pay band
that you are not provided.
The agency dismissed complainant's complaint on the grounds of abuse
of process. The agency stated that complainant filed five EEO
complaints from June 2002 to the filing of the instant complaint,
regarding non-selection and equal pay; and that all five complaints
raise duplicative and redundant claims of non-selection and/or Equal
Pay Act (EPA)/compensation. The agency stated that these claims are
inextricably intertwined and that none of the complaints resulted in
a finding of discrimination or retaliation by the Commission or a United
States District Court.
The agency noted that two complaints addressing the above referenced
matters were consolidated, that an Administrative Judge (AJ) found no
discrimination in a decision dated July 28, 2004, and that the agency
implemented the AJ's decision on August 30, 2004.<1>
The agency also asserted that complainant filed an untimely formal EEO
complaint, identified as Agency No. 2003-066-2004100420. The agency
found that complainant was knowledgeable of the EEO process because
she had previously filed timely EEO complaints, the only reason that
complainant filed Agency No. 2003-066-2004100420 in an untimely fashion
was to overburden the EEO system.
The agency identified a fourth formal complaint, Agency
No. 2003-0666-2004101458, wherein complainant alleged she was not referred
or selected to a position and that those selectees were provided special
pay bands, which she was not provided. The agency determined that
Agency No. 2003-0666-2004101458 reflected an abuse of process because
complainant did not even apply for the position in question. The agency
noted that this complaint was dismissed for failure to state a claim,
on May 4, 2004.
Finally, regarding the fifth and instant complaint, the agency determined
that complainant did not apply for the Mental Health Nurse Practitioner
positions identified in the complaint, and that it was properly dismissed
on the grounds of abuse of process.
The agency may dismiss complaints that exhibit a clear pattern of misuse
of the EEO process for a purpose other than the prevention and elimination
of employment discrimination. 29 C.F.R. § 1614.107(a)(9). A clear pattern
of abuse of process requires: (i) evidence of multiple complaints filings;
and (ii) allegations that are similar or identical, lack specificity or
involved matters previously resolved; or (iii) evidence of circumventing
other administrative processes, retaliating against the agency's in-house
administrative processes or overburdening the EEO complaint system. Id.
When dismissing cases for misuse of the EEO process, the agency
must strictly adhere to Commission case law regarding abuse of
process. Id. Application of the misuse of the EEO process standard must be
rare, because of the strong policy in favor of preserving a complainant's
EEO rights whenever possible. Equal Employment Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), 5-17, (November 9, 1999) (citing
Love v. Pullman, Inc., 404 U.S. 522 (1972)); Wren v. Equal Employment
Opportunity Commission, EEOC Appeal No. 01932105 (August 19, 1993).
Upon review, the Commission finds insufficient evidence to conclude
that complainant used the EEO process for the purpose of circumventing
administrative processes or overburdening the EEO system. The Commission
notes that although complainant filed four previous EEO complaints,
as cited by the agency, and that these complaints basically stated
common themes concerning non-selections and pay inequalities related
to the Physician Assistant position, the instant complaint concerns
a distinct, separate non-selection/ pay issue related to the Mental
Health Practitioner position. Moreover, we determine that neither the
numerosity nor the subject matter of complainant's claims in the five
cited EEO complaints evidences a clear intent by complainant to utilize
the EEO process for impermissible purposes.
However, although the Commission finds insufficient evidence that
complainant has misused the EEO process, we determine that this matter
is also appropriately analyzed in terms of whether it states a claim.
Complainant fails to indicate any loss of wages, benefits, or how she
otherwise suffered any injury with respect to a term, condition or
privilege of employment as a result of the agency's action. Rather,
complainant claimed that the agency should provide a special band with
a higher salary for her position (Nurse Practitioner) because of the
agency's improper hiring practices for a different position (Mental
Health Nurse Practitioner). We noted that complainant did not attempt
to apply for a Mental Health Nurse Practitioner position. Specifically,
in her formal complaint, complainant stated that she does not want to be
a Mental Health Nurse Practitioner, does not want to perform the duties
of that position. Accordingly, we find that the complaint failed to
state a claim. See Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
Accordingly, the agency's dismissal of complainant's complaint is AFFIRMED
for the reasons set forth herein.
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
July 28, 2005
__________________
Date
1The two consolidated EEO complaints, Agency
Nos. 200M-02-102795 and 200M-03-100544, are currently pending before
the Commission in Appeal No. 01A46098.
| [
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197 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120152957.txt | 0120152957.txt | TXT | text/plain | 10,727 | Zachary K.,1 Complainant, v. Martin J. Gruenberg, Chairman, Federal Deposit Insurance Corporation, Agency. | July 31, 2015 | Appeal Number: 0120152957
Background:
At the time of events giving rise to this complaint, Complainant worked as a Compliance Examiner at the Agency's Division of Depositor and Consumer Protection, Dallas Region, Baton Rouge Field Office in Baton Rouge, Louisiana.
The record indicated that on December 24, 2014, Complainant emailed an Agency EEO counselor regarding his claim of denial of promotion when, on November 17 and 19, 2014, he was notified via USAJOBS that he was not selected for a Resource Management Assistant position and a Financial Institution Specialist position. Based on the email, the EEO Counselor was assigned the matter and it was docketed as FDICEO-15-017.
On January 20, 2015, as part of EEO counseling, Complainant signed an agreement to mediate the issue. The record contains a series of emails which indicate that mediation was scheduled to take place. However, although Complainant maintained his desire to engage in mediation, he had a conflict with the schedule, as well as concerns regarding the mediation being held via teleconference and the Agency's chosen representative. It appears that no further attempts at mediation occurred.
On March 15, 2015, Complainant was issued a Notice of Right to File a Formal Complaint ("Notice") via email by the EEO Counselor. A copy of the Notice was also mailed to Complainant's address of record.
On March 16, 2015, Complainant responded to the Notice in a letter sent to the Chief of the Agency's Complaint Processing Branch ("Chief"), stating that he never received a final counseling interview. He also asserted that the Agency refused to participate in mediation and complained that the Agency had not acted in good faith to resolve the informal matter.
On June 11, 2015, Complainant inquired as to the status of his complaint (FDICEO-15-017). An EEO Specialist responded that the EEO Office had no record of receiving a formal EEO complaint from him and considered the matter closed.
On June 17, 2015, Complainant sent an email to an EEO Specialist and the Chief stating that he was filing a complaint for the "denial of due process of EEOC complaint FDICEO-15017 based on race, gender and age." On June 23, 2015, Complainant submitted an amendment to the complaint to add individuals against whom he was filing the complaint.
On July 30, 2015, the Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(8), on the grounds that it was alleging dissatisfaction with complaint processing. The Agency determined that Complainant alleged discrimination on the part of the EEO office regarding his dissatisfaction with the EEO personnel's processing of his claims in FDICEO-15-017. As such, the Agency concluded that the matter should be dismissed.
Complainant appealed stating that the Agency's final decision was incorrect and misleading. He asserted that the complaint was due to the incomplete action on the part of the Agency's EEO Office's personnel. He asserted that the Agency's EEO personnel failed to complete the counseling process and did not adhere to EEOC guidelines. As such, Complainant claimed that his due process rights had been violated. Complainant indicated that the Agency did not engage in mediation and that all mediation activity was cancelled when he objected to the date of mediation and raised other issues. Complainant stated that the Agency's EEO office lacked professionalism and that he has been a victim of unlawful discrimination on the part of the Agency. He contended that the Agency's final decision is another act of unlawful retaliation for the three EEO complaints he has before the Agency. As such, Complainant requested that be granted "rights of Due Process and that the EEOC complaint proceed within the established protocols and guidelines."
The Agency responded to the appeal asking that the Commission affirm its dismissal.
Legal Analysis:
the Commission affirm its dismissal.
ANALYSIS AND FINDINGS
As an initial matter, we note that Complainant does not deny the Agency's assertion that he did not file a formal complaint on his claim of discriminatory non-selections following his receipt of the March 15, 2015 notice of right to file.
Rather, three months later, Complainant filed a June 17, 2015 complaint alleging race, sex and age discrimination regarding a "denial of due process" concerning the EEO counseling he was provided and the failure to provide him with mediation for the informal complaint (FDICEO-15-017) concerning the non-selections. It is only this complaint, concerning complainant
Upon review of the record, we find that Complainant only filed a formal complaint alleging that the Agency's EEO Office did not properly process his informal complaint regarding the two non-selections. Furthermore, even on appeal, Complainant argued that he was subjected to discrimination and retaliation by the Agency's EEO Office based on the processing of his complaint. Complainant's concern was the EEO personnel and his claim that they infringed upon his "due process rights." As such, based on a fair reading of the record including Complainant's statement on appeal, we determine that Complainant abandoned his claim regarding the non-selections by not filing a formal complaint in response to the Notice, and in the instant complaint has only alleged discrimination on the basis of race, gender, age, and reprisal when the EEO office did not properly process his informal complaint.
The regulation set forth at 29 C.F.R. § 1614.107(a)(8) provides, in relevant part, that an Agency shall dismiss claims alleging dissatisfaction with the processing of a prior complaint. Dissatisfaction with the EEO process must be raised within the underlying complaint, not a new complaint. See EEOC - Management Directive 110 (MD-110) Ch. 5 § IV.D (as revised Aug. 5, 2015). Based on our finding that Complainant only alleged a claim of dissatisfaction with the processing of his informal matter, we find that the Agency's dismissal of the complaint is appropriate. | Zachary K.,1
Complainant,
v.
Martin J. Gruenberg,
Chairman,
Federal Deposit Insurance Corporation,
Agency.
Appeal No. 0120152957
Agency No. FDICEO-15-017
DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated July 31, 2015, dismissing his complaint of unlawful employment discrimination alleging violations of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Compliance Examiner at the Agency's Division of Depositor and Consumer Protection, Dallas Region, Baton Rouge Field Office in Baton Rouge, Louisiana.
The record indicated that on December 24, 2014, Complainant emailed an Agency EEO counselor regarding his claim of denial of promotion when, on November 17 and 19, 2014, he was notified via USAJOBS that he was not selected for a Resource Management Assistant position and a Financial Institution Specialist position. Based on the email, the EEO Counselor was assigned the matter and it was docketed as FDICEO-15-017.
On January 20, 2015, as part of EEO counseling, Complainant signed an agreement to mediate the issue. The record contains a series of emails which indicate that mediation was scheduled to take place. However, although Complainant maintained his desire to engage in mediation, he had a conflict with the schedule, as well as concerns regarding the mediation being held via teleconference and the Agency's chosen representative. It appears that no further attempts at mediation occurred.
On March 15, 2015, Complainant was issued a Notice of Right to File a Formal Complaint ("Notice") via email by the EEO Counselor. A copy of the Notice was also mailed to Complainant's address of record.
On March 16, 2015, Complainant responded to the Notice in a letter sent to the Chief of the Agency's Complaint Processing Branch ("Chief"), stating that he never received a final counseling interview. He also asserted that the Agency refused to participate in mediation and complained that the Agency had not acted in good faith to resolve the informal matter.
On June 11, 2015, Complainant inquired as to the status of his complaint (FDICEO-15-017). An EEO Specialist responded that the EEO Office had no record of receiving a formal EEO complaint from him and considered the matter closed.
On June 17, 2015, Complainant sent an email to an EEO Specialist and the Chief stating that he was filing a complaint for the "denial of due process of EEOC complaint FDICEO-15017 based on race, gender and age." On June 23, 2015, Complainant submitted an amendment to the complaint to add individuals against whom he was filing the complaint.
On July 30, 2015, the Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(8), on the grounds that it was alleging dissatisfaction with complaint processing. The Agency determined that Complainant alleged discrimination on the part of the EEO office regarding his dissatisfaction with the EEO personnel's processing of his claims in FDICEO-15-017. As such, the Agency concluded that the matter should be dismissed.
Complainant appealed stating that the Agency's final decision was incorrect and misleading. He asserted that the complaint was due to the incomplete action on the part of the Agency's EEO Office's personnel. He asserted that the Agency's EEO personnel failed to complete the counseling process and did not adhere to EEOC guidelines. As such, Complainant claimed that his due process rights had been violated. Complainant indicated that the Agency did not engage in mediation and that all mediation activity was cancelled when he objected to the date of mediation and raised other issues. Complainant stated that the Agency's EEO office lacked professionalism and that he has been a victim of unlawful discrimination on the part of the Agency. He contended that the Agency's final decision is another act of unlawful retaliation for the three EEO complaints he has before the Agency. As such, Complainant requested that be granted "rights of Due Process and that the EEOC complaint proceed within the established protocols and guidelines."
The Agency responded to the appeal asking that the Commission affirm its dismissal.
ANALYSIS AND FINDINGS
As an initial matter, we note that Complainant does not deny the Agency's assertion that he did not file a formal complaint on his claim of discriminatory non-selections following his receipt of the March 15, 2015 notice of right to file.
Rather, three months later, Complainant filed a June 17, 2015 complaint alleging race, sex and age discrimination regarding a "denial of due process" concerning the EEO counseling he was provided and the failure to provide him with mediation for the informal complaint (FDICEO-15-017) concerning the non-selections. It is only this complaint, concerning complainant
Upon review of the record, we find that Complainant only filed a formal complaint alleging that the Agency's EEO Office did not properly process his informal complaint regarding the two non-selections. Furthermore, even on appeal, Complainant argued that he was subjected to discrimination and retaliation by the Agency's EEO Office based on the processing of his complaint. Complainant's concern was the EEO personnel and his claim that they infringed upon his "due process rights." As such, based on a fair reading of the record including Complainant's statement on appeal, we determine that Complainant abandoned his claim regarding the non-selections by not filing a formal complaint in response to the Notice, and in the instant complaint has only alleged discrimination on the basis of race, gender, age, and reprisal when the EEO office did not properly process his informal complaint.
The regulation set forth at 29 C.F.R. § 1614.107(a)(8) provides, in relevant part, that an Agency shall dismiss claims alleging dissatisfaction with the processing of a prior complaint. Dissatisfaction with the EEO process must be raised within the underlying complaint, not a new complaint. See EEOC - Management Directive 110 (MD-110) Ch. 5 § IV.D (as revised Aug. 5, 2015). Based on our finding that Complainant only alleged a claim of dissatisfaction with the processing of his informal matter, we find that the Agency's dismissal of the complaint is appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 tends 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), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
January 12, 2016
__________________
Date
------------------------------------------------------------
------------------------------------------------------------
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198 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A15357r.txt | 01A15357r.txt | TXT | text/plain | 9,941 | Debra Phillips v. Department of Justice 01A15357 July 11, 2002 . Debra Phillips, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency. | July 11, 2002 | Appeal Number: 01A15357
Case Facts:
Legal Analysis:
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), on the basis
that it raises matters that have not been brought to the attention of
an EEO counselor.
The record discloses that on January 16, 2001, complainant filed an EEO
complaint alleging that she was discriminated against based on her race,
sex and reprisal when:
1. On September 19, 2000, she was verbally assaulted by
a supervisor.
2. On December 30, 2000, she was informed by her supervisor
that he was serving her
with her final annual performance work plan.
The agency dismissed the complaint on the grounds that complainant did
not first contact an EEO counselor before filing her complaint. The
agency stated that the agency sent a letter on October 18, 2000, in
response to complainant's memo dated September 26, 2000, directing her
to contact an EEO counselor within 45 days of the matter alleged to be
discriminatory. According to the agency, complainant did not contact an
EEO Counselor, but simply filed a complaint.
On appeal, complainant, through her attorney, argues that she was unaware
of the EEO process and initially contacted her supervisor rather than
an EEO Counselor. After receiving the agency's letter, complainant
contends that she immediately tried to contact an EEO Counselor.
On October 23, 2000, complainant argues, she contacted an EEO Counselor
(Counselor A), whose name was on the agency's list of EEO Counselors.
According to complainant, she met with the EEO Counselor on October 23,
2000, for four hours in the Federal Building at 300 N. Los Angeles Street.
She asserts that the EEO Counselor told her that she would get back to
her, but never did.
Complainant explains that she assumed that her complaint was being
investigated. At the end of the year, when complainant called the EEO
office to find out the status of the investigation, she was told that
the counselor was on vacation. Complainant states that she called again
on January 3, 2001, and the counselor told her that she could not
process the complaint because the counselor was a supervisor and that
she would have to talk to her supervisor. Next, complainant contends,
she called the EEO hot line in Washington, D.C. and was told that her
complaint could be processed by a counselor that was a supervisor. On
January 9, 2001, complainant claims she contacted two other counselors
listed in the agency's list of EEO counselors (counselors B and C) and
was told that they were not available to assist her. Complainant claims
that she then contacted the supervisor to Counselor A, and was told that
Counselor A would process her complaint and meet with her. On January
22, 2001, complainant met with Counselor A, filled out some documents
and was told that her complaint would be taken care of.
The agency did not offer any comments or rebut complainant's claim that
she vigorously tried to contact the counselors listed in the agency's
list of the EEO counselors with specific names and dates of the contacts.
Therefore, based on a careful review of the record, we find that the
agency's dismissal of the complaint was improper.
Because the agency claims that complainant did not receive EEO counseling
concerning her claims we shall order the agency to provide EEO counseling
to complainant concerning her claims. | Debra Phillips v. Department of Justice
01A15357
July 11, 2002
.
Debra Phillips,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A15357
Agency No. I-01-WO37
DECISION
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), on the basis
that it raises matters that have not been brought to the attention of
an EEO counselor.
The record discloses that on January 16, 2001, complainant filed an EEO
complaint alleging that she was discriminated against based on her race,
sex and reprisal when:
1. On September 19, 2000, she was verbally assaulted by
a supervisor.
2. On December 30, 2000, she was informed by her supervisor
that he was serving her
with her final annual performance work plan.
The agency dismissed the complaint on the grounds that complainant did
not first contact an EEO counselor before filing her complaint. The
agency stated that the agency sent a letter on October 18, 2000, in
response to complainant's memo dated September 26, 2000, directing her
to contact an EEO counselor within 45 days of the matter alleged to be
discriminatory. According to the agency, complainant did not contact an
EEO Counselor, but simply filed a complaint.
On appeal, complainant, through her attorney, argues that she was unaware
of the EEO process and initially contacted her supervisor rather than
an EEO Counselor. After receiving the agency's letter, complainant
contends that she immediately tried to contact an EEO Counselor.
On October 23, 2000, complainant argues, she contacted an EEO Counselor
(Counselor A), whose name was on the agency's list of EEO Counselors.
According to complainant, she met with the EEO Counselor on October 23,
2000, for four hours in the Federal Building at 300 N. Los Angeles Street.
She asserts that the EEO Counselor told her that she would get back to
her, but never did.
Complainant explains that she assumed that her complaint was being
investigated. At the end of the year, when complainant called the EEO
office to find out the status of the investigation, she was told that
the counselor was on vacation. Complainant states that she called again
on January 3, 2001, and the counselor told her that she could not
process the complaint because the counselor was a supervisor and that
she would have to talk to her supervisor. Next, complainant contends,
she called the EEO hot line in Washington, D.C. and was told that her
complaint could be processed by a counselor that was a supervisor. On
January 9, 2001, complainant claims she contacted two other counselors
listed in the agency's list of EEO counselors (counselors B and C) and
was told that they were not available to assist her. Complainant claims
that she then contacted the supervisor to Counselor A, and was told that
Counselor A would process her complaint and meet with her. On January
22, 2001, complainant met with Counselor A, filled out some documents
and was told that her complaint would be taken care of.
The agency did not offer any comments or rebut complainant's claim that
she vigorously tried to contact the counselors listed in the agency's
list of the EEO counselors with specific names and dates of the contacts.
Therefore, based on a careful review of the record, we find that the
agency's dismissal of the complaint was improper.
Because the agency claims that complainant did not receive EEO counseling
concerning her claims we shall order the agency to provide EEO counseling
to complainant concerning her claims. Accordingly, the final agency
decision to dismiss the complaint is REVERSED and the complaint is
REMANDED for further processing as ordered below.
ORDER
The agency is ordered to provide EEO counseling concerning complainant's
claims. Complainant shall not be required to refile her complaint
regarding these claims. Thereafter, 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 and notify her of the opportunity to obtain EEO counseling within
thirty (30) calendar days of the date this decision becomes final.
A copy of the agency's letter of acknowledgment and notice of opportunity
for counseling 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
July 11, 2002
______________
Date
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199 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120093258.txt | 0120093258.txt | TXT | text/plain | 11,919 | Robertlee E. Coleman, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency. | June 25, 2009 | Appeal Number: 0120093258
Background:
At the time of events giving rise to this complaint, Complainant worked
as an Excepted Service Civilian Mariner employed by the Military Sealift
Fleet Support Command (MSFSC) as a Second Officer on the United States
Naval Ship (USNS) Catawba. On February 18, 2009, Complainant contacted
an EEO Counselor (EC). On May 29, 2009, Complainant filed a formal
complaint alleging that the Agency subjected him to discrimination on
the bases of race (Black/Filipino), national origin (Philippines), color
(Brown), and reprisal for prior protected EEO activity when, on or about
October 23, 2008:
1. He was not provided medical attention when he became ill; and
2. He was assigned to the unfavorable shift during the alternate sea
watch.
The Agency dismissed Complainantâs complaint pursuant to 29 C.F.R. §
1614.107(a)(2), for untimely EEO Counselor contact. The Agency found
that the events alleged in Complainantâs complaint occurred on or
about October 23, 2008, but he did not contact an EEO Counselor until
February 18, 2009, which was beyond the 45 day time limit.
CONTENTIONS ON APPEAL
On appeal, Complainant, through his attorney, contended that his
EEO Counselor contact was timely. Specifically, Complainant made the
following arguments: (1) the time for him to initiate EEO counseling was
tolled because he was on active military duty from July 2008 to December
3, 2008; (2) he timely initiated EEO counseling when he emailed EC between
December 3, 2009 and December 19, 2009; (3) the Agency was estopped from
asserting that his EEO Counselor contact was untimely because EC failed
to respond to his December 2008 email; and (4) the Agency was estopped
from asserting that his EEO Counselor contact was untimely because,
during counseling, EC failed to inquire into the reason for the delay.
In support of his appeal, Complainant submitted a declaration in which
he addressed, among other things, his active duty status and his prior
contact with EC.
In response, the Agency contended that there was no basis to extend the
time limit for Complainant to contact an EEO Counselor. Specifically,
the Agency asserted that Complainant had both actual and constructive
knowledge of the time limits because he attended a Prevention of Sexual
Harassment (POSH) training on October 12, 2005 in which he was advised
of the time limits and was provided a copy of the POSH training manual
which contained information on the time limits. In addition, the Agency
asserted that Complainant had the ability to contact an EEO Counselor
via telephone or computer while he was assigned to the USNS Catawba.
The Agency also contended that Complainantâs arguments for tolling,
estoppel, and/or waiver were unfounded. Regarding his first argument,
the Agency asserted that Complainantâs employment with the MSFSC was
excepted civil service employment, not active military duty. Regarding
his second and third arguments, the Agency asserted that Complainant
failed to produce evidence of an earlier timely contact that could easily
be established through documentation and that its own search yielded no
such documentation. Regarding his fourth argument, the Agency asserted
that estoppel did not apply in this situation because an EEO Counselor
advising an aggrieved individual that an alleged discriminatory matter
is or appears to be untimely could be perceived as discouraging the
individual from pursuing a complaint.
Legal Analysis:
the Commission AFFIRMS the Agencyâs final decision
dismissing Complainantâs complaint.
ISSUE PRESENTED
The issue presented is whether the Agency properly dismissed
Complainantâs complaint pursuant to 29 C.F.R. § 1614.107(a)(2),
for untimely EEO Counselor contact.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an Excepted Service Civilian Mariner employed by the Military Sealift
Fleet Support Command (MSFSC) as a Second Officer on the United States
Naval Ship (USNS) Catawba. On February 18, 2009, Complainant contacted
an EEO Counselor (EC). On May 29, 2009, Complainant filed a formal
complaint alleging that the Agency subjected him to discrimination on
the bases of race (Black/Filipino), national origin (Philippines), color
(Brown), and reprisal for prior protected EEO activity when, on or about
October 23, 2008:
1. He was not provided medical attention when he became ill; and
2. He was assigned to the unfavorable shift during the alternate sea
watch.
The Agency dismissed Complainantâs complaint pursuant to 29 C.F.R. §
1614.107(a)(2), for untimely EEO Counselor contact. The Agency found
that the events alleged in Complainantâs complaint occurred on or
about October 23, 2008, but he did not contact an EEO Counselor until
February 18, 2009, which was beyond the 45 day time limit.
CONTENTIONS ON APPEAL
On appeal, Complainant, through his attorney, contended that his
EEO Counselor contact was timely. Specifically, Complainant made the
following arguments: (1) the time for him to initiate EEO counseling was
tolled because he was on active military duty from July 2008 to December
3, 2008; (2) he timely initiated EEO counseling when he emailed EC between
December 3, 2009 and December 19, 2009; (3) the Agency was estopped from
asserting that his EEO Counselor contact was untimely because EC failed
to respond to his December 2008 email; and (4) the Agency was estopped
from asserting that his EEO Counselor contact was untimely because,
during counseling, EC failed to inquire into the reason for the delay.
In support of his appeal, Complainant submitted a declaration in which
he addressed, among other things, his active duty status and his prior
contact with EC.
In response, the Agency contended that there was no basis to extend the
time limit for Complainant to contact an EEO Counselor. Specifically,
the Agency asserted that Complainant had both actual and constructive
knowledge of the time limits because he attended a Prevention of Sexual
Harassment (POSH) training on October 12, 2005 in which he was advised
of the time limits and was provided a copy of the POSH training manual
which contained information on the time limits. In addition, the Agency
asserted that Complainant had the ability to contact an EEO Counselor
via telephone or computer while he was assigned to the USNS Catawba.
The Agency also contended that Complainantâs arguments for tolling,
estoppel, and/or waiver were unfounded. Regarding his first argument,
the Agency asserted that Complainantâs employment with the MSFSC was
excepted civil service employment, not active military duty. Regarding
his second and third arguments, the Agency asserted that Complainant
failed to produce evidence of an earlier timely contact that could easily
be established through documentation and that its own search yielded no
such documentation. Regarding his fourth argument, the Agency asserted
that estoppel did not apply in this situation because an EEO Counselor
advising an aggrieved individual that an alleged discriminatory matter
is or appears to be untimely could be perceived as discouraging the
individual from pursuing a complaint.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides that the agency shall
dismiss a complaint that fails to comply with the applicable time limits
contained in § 1614.105, unless the agency extends the time limits in
accordance with § 1614.604(c). EEOC Regulation
29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination
should be brought to the attention of the EEO Counselor within forty-five
(45) days of the date of the matter alleged to be discriminatory or,
in the case of a personnel action, within forty-five (45) days of the
effective date of the action.
EEOC Regulation 29 C.F.R. § 1614.105(a)(2) provides that the agency or
the Commission shall extend the time limits when the individual shows
that he was not notified of the time limits and was not otherwise aware
of them, that he did not know and reasonably should not have known that
the discriminatory matter or personnel action occurred, that despite
due diligence he was prevented by circumstances beyond his control from
contacting the EEO Counselor within the time limits, or for other reasons
considered sufficient by the agency or the Commission. Time limits are
also subject to waiver, estoppel, and equitable tolling.
29 C.F.R. § 1614.604(c).
Upon review, we find that the Agency properly dismissed Complainantâs
complaint for untimely EEO Counselor contact. The record discloses that
the alleged discriminatory events occurred on or about October 23, 2008,
but Complainant did not initiate contact with an EEO Counselor until
February 18, 2009, which is beyond the 45 day limitation period.
As an initial matter, we find that Complainant had constructive knowledge
of the time limit for contacting an EEO Counselor. The record contains
an attendance sheet with Complainantâs signature for an October 12, 2005
POSH training. In addition, the record contains the POSH training manual,
which clearly demonstrates on page I-7 that the training covered the time
limit for contacting an EEO Counselor. Further, the record contains an
affidavit from the Equal Employment Specialist who conducted the training
testifying that the training covered the relevant time limits.
On appeal, we find that Complainant presented no persuasive argument or
evidence warranting an extension of the time limit for initiating EEO
Counselor contact. Regarding his first argument, we find that Complainant
failed to establish that he was on active military duty with the MSFSC
from July 2008 to December 3, 2008. Although he stated in his declaration
that he was on active duty at the time, Complainant did not provide
any documentary evidence in support of that assertion. In addition,
the record contains a Notification of Personnel Action effective July
6, 2008 indicating that the position that Complainant occupied was
an Excepted Service position. Regarding Complainantâs second and
third arguments, we find that Complainant failed to establish that he
contacted EC in December 2008. Although he stated in his declaration
that he ârecall[ed] emailingâ EC, Complainant did not provide a copy
of the email that he allegedly sent or any other relevant documentation.
Regarding Complainantâs fourth argument, we find that it is unavailing.
The Commission has never held that an agency is estopped from dismissing
a complaint for untimely EEO Counselor contact by the EEO Counselorâs
failure to inquire into the reasons for the delay. | 
Robertlee E. Coleman,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120093258
Agency No. DON 09-62381-01014
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated June 25, 2009, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the
following reasons, the Commission AFFIRMS the Agencyâs final decision
dismissing Complainantâs complaint.
ISSUE PRESENTED
The issue presented is whether the Agency properly dismissed
Complainantâs complaint pursuant to 29 C.F.R. § 1614.107(a)(2),
for untimely EEO Counselor contact.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an Excepted Service Civilian Mariner employed by the Military Sealift
Fleet Support Command (MSFSC) as a Second Officer on the United States
Naval Ship (USNS) Catawba. On February 18, 2009, Complainant contacted
an EEO Counselor (EC). On May 29, 2009, Complainant filed a formal
complaint alleging that the Agency subjected him to discrimination on
the bases of race (Black/Filipino), national origin (Philippines), color
(Brown), and reprisal for prior protected EEO activity when, on or about
October 23, 2008:
1. He was not provided medical attention when he became ill; and
2. He was assigned to the unfavorable shift during the alternate sea
watch.
The Agency dismissed Complainantâs complaint pursuant to 29 C.F.R. §
1614.107(a)(2), for untimely EEO Counselor contact. The Agency found
that the events alleged in Complainantâs complaint occurred on or
about October 23, 2008, but he did not contact an EEO Counselor until
February 18, 2009, which was beyond the 45 day time limit.
CONTENTIONS ON APPEAL
On appeal, Complainant, through his attorney, contended that his
EEO Counselor contact was timely. Specifically, Complainant made the
following arguments: (1) the time for him to initiate EEO counseling was
tolled because he was on active military duty from July 2008 to December
3, 2008; (2) he timely initiated EEO counseling when he emailed EC between
December 3, 2009 and December 19, 2009; (3) the Agency was estopped from
asserting that his EEO Counselor contact was untimely because EC failed
to respond to his December 2008 email; and (4) the Agency was estopped
from asserting that his EEO Counselor contact was untimely because,
during counseling, EC failed to inquire into the reason for the delay.
In support of his appeal, Complainant submitted a declaration in which
he addressed, among other things, his active duty status and his prior
contact with EC.
In response, the Agency contended that there was no basis to extend the
time limit for Complainant to contact an EEO Counselor. Specifically,
the Agency asserted that Complainant had both actual and constructive
knowledge of the time limits because he attended a Prevention of Sexual
Harassment (POSH) training on October 12, 2005 in which he was advised
of the time limits and was provided a copy of the POSH training manual
which contained information on the time limits. In addition, the Agency
asserted that Complainant had the ability to contact an EEO Counselor
via telephone or computer while he was assigned to the USNS Catawba.
The Agency also contended that Complainantâs arguments for tolling,
estoppel, and/or waiver were unfounded. Regarding his first argument,
the Agency asserted that Complainantâs employment with the MSFSC was
excepted civil service employment, not active military duty. Regarding
his second and third arguments, the Agency asserted that Complainant
failed to produce evidence of an earlier timely contact that could easily
be established through documentation and that its own search yielded no
such documentation. Regarding his fourth argument, the Agency asserted
that estoppel did not apply in this situation because an EEO Counselor
advising an aggrieved individual that an alleged discriminatory matter
is or appears to be untimely could be perceived as discouraging the
individual from pursuing a complaint.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides that the agency shall
dismiss a complaint that fails to comply with the applicable time limits
contained in § 1614.105, unless the agency extends the time limits in
accordance with § 1614.604(c). EEOC Regulation
29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination
should be brought to the attention of the EEO Counselor within forty-five
(45) days of the date of the matter alleged to be discriminatory or,
in the case of a personnel action, within forty-five (45) days of the
effective date of the action.
EEOC Regulation 29 C.F.R. § 1614.105(a)(2) provides that the agency or
the Commission shall extend the time limits when the individual shows
that he was not notified of the time limits and was not otherwise aware
of them, that he did not know and reasonably should not have known that
the discriminatory matter or personnel action occurred, that despite
due diligence he was prevented by circumstances beyond his control from
contacting the EEO Counselor within the time limits, or for other reasons
considered sufficient by the agency or the Commission. Time limits are
also subject to waiver, estoppel, and equitable tolling.
29 C.F.R. § 1614.604(c).
Upon review, we find that the Agency properly dismissed Complainantâs
complaint for untimely EEO Counselor contact. The record discloses that
the alleged discriminatory events occurred on or about October 23, 2008,
but Complainant did not initiate contact with an EEO Counselor until
February 18, 2009, which is beyond the 45 day limitation period.
As an initial matter, we find that Complainant had constructive knowledge
of the time limit for contacting an EEO Counselor. The record contains
an attendance sheet with Complainantâs signature for an October 12, 2005
POSH training. In addition, the record contains the POSH training manual,
which clearly demonstrates on page I-7 that the training covered the time
limit for contacting an EEO Counselor. Further, the record contains an
affidavit from the Equal Employment Specialist who conducted the training
testifying that the training covered the relevant time limits.
On appeal, we find that Complainant presented no persuasive argument or
evidence warranting an extension of the time limit for initiating EEO
Counselor contact. Regarding his first argument, we find that Complainant
failed to establish that he was on active military duty with the MSFSC
from July 2008 to December 3, 2008. Although he stated in his declaration
that he was on active duty at the time, Complainant did not provide
any documentary evidence in support of that assertion. In addition,
the record contains a Notification of Personnel Action effective July
6, 2008 indicating that the position that Complainant occupied was
an Excepted Service position. Regarding Complainantâs second and
third arguments, we find that Complainant failed to establish that he
contacted EC in December 2008. Although he stated in his declaration
that he ârecall[ed] emailingâ EC, Complainant did not provide a copy
of the email that he allegedly sent or any other relevant documentation.
Regarding Complainantâs fourth argument, we find that it is unavailing.
The Commission has never held that an agency is estopped from dismissing
a complaint for untimely EEO Counselor contact by the EEO Counselorâs
failure to inquire into the reasons for the delay.
Accordingly, we find that the Agency properly dismissed Complainantâs
complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO
Counselor contact.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the
Agencyâs final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 partyâs 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), at 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
77960, Washington, DC 20013. 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).
COMPLAINANTâS RIGHT TO FILE A CIVIL ACTION (S0610)
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. âAgencyâ or âdepartmentâ 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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 (âRight to File A Civil Actionâ).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___8/26/11_______________
Date
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200 | https://www.eeoc.gov/sites/default/files/decisions/2024_05_22/2024001643.pdf | 2024001643.pdf | PDF | application/pdf | 11,900 | August 25, 2023 | Appeal Number: 2024001643
Background:
During the period at issue, Complainant worked as a Canier Technician, Grade Level 02-Q, at the
Agency's main post office in Oakland, Florida.
On August 25, 2023, Complainant initiated contact with an EEO Counselor. The Agency and
Complainant did not resolve the matter through infonnal EEO counseling.
1 This case has been randomly assigned a pseudonym which will replace Complainant's name
when the decision is published to non-paiiies and the Commissio n's website.
2 2024001643
On November 8, 2023, Complainant filed a formal EEO complaint alleging that the Agency
subjected him to discrimination on the bases of race /national origin (Hispanic and sex (male)
when:
1. On February 6, 2023, a manager damaged Complainant’s car with an unknown substance.
2. On March 1, 23, May 29, 31, June 12, 14, July 7, 10, 16, August 29, 31, September 1, 26, 27, 2023, a manager reported Complainant to the police, resulting in them arriving at his
location.
On November 30, 2023, the Agency issued a final decision dismissing the complaint in its entirety .
Regarding Claim 1, the Agency determined that Complainant failed to state a claim under 29
C.F.R. § 1614.107(a)(1) and (2) , finding that Complainant did not raise a viable claim of
discrimination, and that he did not raise this matter during EEO counseling, and that it is not like or related to a matter for which Complainant had undergone EEO counseling. In the alternative,
the Agency dismissed Claim 1 , under 29 C.F.R. § 1614.107(a)( 2), because Complainant’s EEO
Counselor contact was untimely. Regarding Claim 2, the Agency dismissed for failure to state a claim as an improper collateral
attack against actions of police toward Complainant and apparent restraining orders that were issued against Complainant in civil courts. The instant appeal from Complainant followed.
CONTENTIONS ON APPEAL
On appeal , Complainant contended that he was the victim of harassment by a manager following
their prior consensual sexual relationship. Complainant stated that he had submitted additional
evidence of th at manager harassing him to the EEO Counselor. Next, regarding Claim 2,
Complainant disputed the accuracy of the dates as framed by the Agency. According to
Complainant, he had been harassed by police on account of t he manager on different days between
July 13, 2023 and September 27, 2023.
2 Complainant maintained that his appeal should be granted
because of errors committed by the Agency’s EEO officers.3
2 According to Complainant, he had harassing encounters with the police on July 13, 2023, August
29, 2023, August 31, 2023, September 1, 2023, September 26, 2023 and September 27, 2023.
3 Even if the Agency did erroneously list additional dates on which Complainant claimed to be
harassed by police, it does not impact our disposition of this appeal.
3 2024001643
STANDARD OF REVIEW
The Agency’s decision to dismiss a complaint is subject to de novo review by the Commission,
whic
h requires the Commission to examine the record without regard to the factual and legal
determinations of the previous decision maker and issue its decision based on the Commission’s own assessm ent of the record and its interpretation of the law. 29 C.F.R. § 1614.405(a). The
Commission should construe the complaint in the light most favorable to the complainant and take the complaint’s allegations as true. Cobb v. Dep’t of the Treasury, EEOC Request No. 05970077
(Mar . 13, 1997). Thus, all reasonable inferences that may be drawn from the complaint’s
allegations must be made in favor of the complainant.
Legal Analysis:
the Commission,
whic
h requires the Commission to examine the record without regard to the factual and legal
determinations of the previous decision maker and issue its decision based on the Commission’s own assessm ent of the record and its interpretation of the law. 29 C.F.R. § 1614.405(a). The
Commission should construe the complaint in the light most favorable to the complainant and take the complaint’s allegations as true. Cobb v. Dep’t of the Treasury, EEOC Request No. 05970077
(Mar . 13, 1997). Thus, all reasonable inferences that may be drawn from the complaint’s
allegations must be made in favor of the complainant.
ANALYSIS
Claim 1
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) provides, that complaints of discrimination must be brought to the attention of an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty -five days of the effective date
of the action. EEOC Regulation 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that the Agency shall dismiss a complaint for failure to comply with the applicable time limits.
Claim 1 was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO
Counselor contact. The record discloses that the alleged vehicle damage occurred on February 6,
2023, but Complainant did not initiate contact with an EEO Counselor until August 25, 2023, which is wel l beyond the forty- five day limitation period. On appeal, Complainant has presented
no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Because we find the Agency properly dismissed Claim 1 as for untimely EEO Counselor contact, we decline to address the Agency’s alternative dismissal grounds on Claim 1.
Claim 2
Under the Commission’s regulations at 29 C.F.R. §§ 1614.103, 1614.106(a), the Agency must
accept a justiciable claim that an aggrieved employee has been subjected to discrimination based
on EEO -protected characteristics or because of EEO -protected activities. EEOC Regulation 29
C.F.R. § 1614.107(a)(1) provides the Agency shall dismiss a complai nt that fails to state a claim.
Claim 2 failed to state a claim under the EEOC regulations because Complainant did not allege that
he suffered harm or loss with respect to a term, condition, or privilege of employment for
which there is a remedy under E EOC’s regulations. Diaz v. Dep’t of the Air Force, EEOC Request
No. 05931049 (Apr. 21, 1994). Regarding the second c laim, we concur with the Agency in that
Complainant is attempting to use the EEO complaint process to collaterally attack the actions of
local police and adverse orders from local courts.
4 2024001643
Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 23, 1994) (challenge to
evidentiary ruling in grievance process fails to state a claim as an EEO complaint) ; Wills v. Dep’t
of Def. , EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC
Request No. 05940585 (Sep. 22, 1994). The proper forum for Complainant to challenge
mistreatment by the local police and courts w as before those entities but not this Commission.
There i s no remedy available to Complainant for these actions in the administrative EEO complaint
process. As a result , the Agency’s dismissal of Claim 2 was proper. | U.S. EQUAL EMPLOYME NT OPPORT UNITY COMMISSION
Office of Federal Operation s
P.O. Box 77960
Washington, DC 20013
V.
Louis DeJoy,
Postmaste r General,
United States Postal Service
(Field Areas and Regions),
Agency.
Appeal No. 2024001643
Agency No. 4G-330-0348-23
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commiss ion) from the Agency's final decision dated Novembe r 30, 2023, dismissing his fonnal
EEO complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the
Agency's dismissal decision is AFFIRMED .
ISSUE PRESENTED
Whether the Agency's final decision properly dismissed Complainant's fonnal EEO complaint for
failure to state a claim and untimely EEO Counselor contact.
BACKGROUND
During the period at issue, Complainant worked as a Canier Technician, Grade Level 02-Q, at the
Agency's main post office in Oakland, Florida.
On August 25, 2023, Complainant initiated contact with an EEO Counselor. The Agency and
Complainant did not resolve the matter through infonnal EEO counseling.
1 This case has been randomly assigned a pseudonym which will replace Complainant's name
when the decision is published to non-paiiies and the Commissio n's website.
2 2024001643
On November 8, 2023, Complainant filed a formal EEO complaint alleging that the Agency
subjected him to discrimination on the bases of race /national origin (Hispanic and sex (male)
when:
1. On February 6, 2023, a manager damaged Complainant’s car with an unknown substance.
2. On March 1, 23, May 29, 31, June 12, 14, July 7, 10, 16, August 29, 31, September 1, 26, 27, 2023, a manager reported Complainant to the police, resulting in them arriving at his
location.
On November 30, 2023, the Agency issued a final decision dismissing the complaint in its entirety .
Regarding Claim 1, the Agency determined that Complainant failed to state a claim under 29
C.F.R. § 1614.107(a)(1) and (2) , finding that Complainant did not raise a viable claim of
discrimination, and that he did not raise this matter during EEO counseling, and that it is not like or related to a matter for which Complainant had undergone EEO counseling. In the alternative,
the Agency dismissed Claim 1 , under 29 C.F.R. § 1614.107(a)( 2), because Complainant’s EEO
Counselor contact was untimely. Regarding Claim 2, the Agency dismissed for failure to state a claim as an improper collateral
attack against actions of police toward Complainant and apparent restraining orders that were issued against Complainant in civil courts. The instant appeal from Complainant followed.
CONTENTIONS ON APPEAL
On appeal , Complainant contended that he was the victim of harassment by a manager following
their prior consensual sexual relationship. Complainant stated that he had submitted additional
evidence of th at manager harassing him to the EEO Counselor. Next, regarding Claim 2,
Complainant disputed the accuracy of the dates as framed by the Agency. According to
Complainant, he had been harassed by police on account of t he manager on different days between
July 13, 2023 and September 27, 2023.
2 Complainant maintained that his appeal should be granted
because of errors committed by the Agency’s EEO officers.3
2 According to Complainant, he had harassing encounters with the police on July 13, 2023, August
29, 2023, August 31, 2023, September 1, 2023, September 26, 2023 and September 27, 2023.
3 Even if the Agency did erroneously list additional dates on which Complainant claimed to be
harassed by police, it does not impact our disposition of this appeal.
3 2024001643
STANDARD OF REVIEW
The Agency’s decision to dismiss a complaint is subject to de novo review by the Commission,
whic
h requires the Commission to examine the record without regard to the factual and legal
determinations of the previous decision maker and issue its decision based on the Commission’s own assessm ent of the record and its interpretation of the law. 29 C.F.R. § 1614.405(a). The
Commission should construe the complaint in the light most favorable to the complainant and take the complaint’s allegations as true. Cobb v. Dep’t of the Treasury, EEOC Request No. 05970077
(Mar . 13, 1997). Thus, all reasonable inferences that may be drawn from the complaint’s
allegations must be made in favor of the complainant.
ANALYSIS
Claim 1
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) provides, that complaints of discrimination must be brought to the attention of an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty -five days of the effective date
of the action. EEOC Regulation 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that the Agency shall dismiss a complaint for failure to comply with the applicable time limits.
Claim 1 was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO
Counselor contact. The record discloses that the alleged vehicle damage occurred on February 6,
2023, but Complainant did not initiate contact with an EEO Counselor until August 25, 2023, which is wel l beyond the forty- five day limitation period. On appeal, Complainant has presented
no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Because we find the Agency properly dismissed Claim 1 as for untimely EEO Counselor contact, we decline to address the Agency’s alternative dismissal grounds on Claim 1.
Claim 2
Under the Commission’s regulations at 29 C.F.R. §§ 1614.103, 1614.106(a), the Agency must
accept a justiciable claim that an aggrieved employee has been subjected to discrimination based
on EEO -protected characteristics or because of EEO -protected activities. EEOC Regulation 29
C.F.R. § 1614.107(a)(1) provides the Agency shall dismiss a complai nt that fails to state a claim.
Claim 2 failed to state a claim under the EEOC regulations because Complainant did not allege that
he suffered harm or loss with respect to a term, condition, or privilege of employment for
which there is a remedy under E EOC’s regulations. Diaz v. Dep’t of the Air Force, EEOC Request
No. 05931049 (Apr. 21, 1994). Regarding the second c laim, we concur with the Agency in that
Complainant is attempting to use the EEO complaint process to collaterally attack the actions of
local police and adverse orders from local courts.
4 2024001643
Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 23, 1994) (challenge to
evidentiary ruling in grievance process fails to state a claim as an EEO complaint) ; Wills v. Dep’t
of Def. , EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC
Request No. 05940585 (Sep. 22, 1994). The proper forum for Complainant to challenge
mistreatment by the local police and courts w as before those entities but not this Commission.
There i s no remedy available to Complainant for these actions in the administrative EEO complaint
process. As a result , the Agency’s dismissal of Claim 2 was proper.
CONCLUSION
Accordingly, we AFFIRM the Agency’s final decision dismissing the formal EEO complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0124.1)
The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) wit
hin thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration
elects to file a statement or brief in support of the request, that statement or brief must be filed
together with the request for reconsideration . A party shall have twenty (20) calendar days
from rece ipt of another party’s request for reconsideration within which to submit a brief or
statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD -110), at Chap. 9 § VII.B (Aug. 5, 2015).
Complainant should submit their request for reconsideration, and any statement or brief in support of their request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx
Alternatively, Complainant can submit their request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604.
5 2024001643
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s
Fede
ral Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or
statement or brief in opposition must also include proof of service on the other party, unless Complainant files their request via the EEOC Public Portal, in which case no proof of service is required.
Failure to file within the 30- d
ay time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the
request. Any supporting documentation must be submitted together with the 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(f).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0124)
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 their 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 departmen t 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests.
6 2024001643
Such requests do not alter the time limits for filing a civil action (please read the paragraph titled
Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
Carlton M. Hadden, Director Office of Federal Operations
May 8, 2024
Date | [
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"Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994)",
"Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 23, 1994)",
"Wills v. Dep’t of Def. , EEOC Request No. 05970596 (July 30, 1998)",
"Kleinman ... | [
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0.0853176936507225,
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0.01825944148004055,
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0.027962787076830864,
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0.017371850088238716,
0.019892200827598572,
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-0.0270676352083683,
-0.... | |
201 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a32769_r.txt | 01a32769_r.txt | TXT | text/plain | 12,772 | Alice Ritchie v. Department of Veterans Affairs 01A32769 June 4, 2004 . Alice Ritchie, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency. | June 4, 2004 | Appeal Number: 01A32769
Case Facts:
Complainant filed a timely appeal with this Commission from the final
agency decision dated March 11, 2003, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
Believing that she was the victim of discrimination in reprisal for prior
EEO activity, complainant contacted the EEO office on November 13, 2002.
Informal efforts to resolve her concerns were unsuccessful.
On January 8, 2003, complainant filed a formal complaint.
In its final decision dated March 11, 2003, the agency determined that
the instant complaint was comprised of seven claims, that were identified
in the following fashion:
(1) on January 27, 2000, complainant received a memorandum regarding the
decision of the Nurse Professional Standards Board (NPSB) on her appeal
filed in July 1999 of the board action of May 7, 1999;
(2) on or around February 4, 2000, the Chief Nurse refused to promote
complainant to Nurse III because complainant was allegedly untimely with
her appeal to the NPSB;
(3) on August 1, 2001, complainant received a July 11, 2001 letter
regarding the May 2000 to May 2001 proficiency rating period that
erroneously stated that complainant had no non-nursing degrees;
(4) on or around May 8, 2002, the NPSB applied new qualification standards
to complainant's 2002 proficiency review;
(5) on June 5, 2002, complainant received a memorandum indicating that
her proficiency review was done at the Northport VAMC and not by VISN
III as indicated in a January 30, 2002 letter from the Chief Nurse;
(6) on September 18, 2002, complainant received an August 29, 2002 letter
from the Chief Nurse stating that complainant had declined to have her
2002 proficiency reviewed by VISN III and that the Newport NPSB would
not review historical data; and
(7) on December 20, 2002, complainant discovered that her board actions
still displayed erroneous information as stated in her EEO complaint that
is currently at hearing (ORM Case No. 200R-0632-2001103371 or 200H-1719).
The agency dismissed claims (1) through (6) for untimely Counselor
contact. The agency noted that when complainant was asked why she did not
contact the EEO office prior to November 13, 2002, complainant stated that
she discovered missing and altered documents in her Official Personnel
Folder (OPF) after the expiration of the 45-day limitation period.
The agency determined that complainant was aware of the erroneous and/or
missing documents at the time of the events in question. The agency
concluded that complainant attended training which informed her of the
EEO time frames; and that she was a trained EEO Counselor. The agency
dismissed claim (7) for stating same claim as that raised in a prior
complaint. Specifically, the agency noted that complainant addressed
the same issue in Case No. 200H-1719. In addition, the agency found
no continuing violation, determining that none of complainant's claims
(claims (1) through (6)) were timely and that they were not interrelated.
On appeal, complainant through her attorney, states that the
agency misconstrued the matters raised in the instant complaint
when it determined that complainant claimed that she was subjected
to disparate treatment with regard to the processing of NPSB actions.
Complainant's attorney argues that the main issue in the instant complaint
is complainant's claim that on June 5, 2002, she was notified that the
Nursing Board failed to promote her to Nurse Grade III.<1> Regarding
the matters identified by the agency as claims (1) - (7), identified
above, complainant's attorney argues that these matters were intended
to support and not supersede a claim regarding the promotion denial
in June 2002.
With respect to the agency's assertion that complainant was trained as
an EEO Counselor, complainant's attorney states "even if this were true,
she is not an attorney or versed in the legal technicalities underlying
this specialized area of law." Further, complainant's attorney states
that although complainant did not meet the 45-day limitation period,
that her complaint consists of a "series of events which should be viewed
as a continuum and ongoing in nature."
In response, the agency argues that complainant first initiated EEO
Counselor contact on July 8, 2002, regarding not being promoted to Nurse
III grade in May 2002. The agency stated that the EEO Counselor issued
a Notice of Right to File a Discrimination Complaint to complainant and
her representative on August 23, 2002, but that complainant did not file
a formal complaint on the issue of the promotion denial. The agency
argues that complainant, instead, again contacted an EEO Counselor
regarding claims of discrimination on November 13, 2002, alleging various
matters that caused her not to be promoted to the Nurse III grade from May
1993 to May 29, 2002, and started the EEO counseling process anew.
The record in this case contains a copy of the EEO Counselor's Report
following complainant's initiation of EEO Counselor contact on November
13, 2002. Therein, the EEO Counselor stated that complainant claimed
that she was undergoing EEO counseling about the timeliness of board
actions and the discrepancies in how information is processed and how the
erroneous information has been used to deny [complainant] a promotion
to the Registered Nurse, Level III. The EEO Counselor further stated
that complainant stated that this complaint is not about the failure
to promote because she has raised that issue in prior complaints.
Claims (1) - (6)
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, 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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The Commission notes that complainant initiated EEO Counselor contact on
July 8, 2002, regarding a promotion denial in late May 2002. However, the
record reflects that complainant abandoned this claim by not subsequently
filing a formal complaint on this matter. Complainant again contacted
an EEO Counselor on November 13, 2002, and the EEO Counselor's Report,
as well as the instant formal complaint, do not address the issue of
promotion denial. Rather, the complaint reflects that complainant
identified the matters raised in claims (1) - (7).
Complainant's initial EEO Counselor contact, on November 13, 2002,
is beyond the forty-five (45) day limitation period regarding the
matters identified in claims (1) - (6). The Commission determines that
complainant should have reasonably suspected discrimination well prior
to her initial EEO Counselor contact in November 2002. In addition,
complainant claims that her complaint is part of a continuing violation.
The Commission determines that a continuing violation analysis is not
necessary as there are no viable claims that occurred within forty-five
days of complainant's initial EEO Counselor contact.
Claim (7)
Complainant claimed that on December 20, 2002, she discovered that her
board actions still displayed erroneous information as stated in a prior
EEO complaint that she identified in her formal complaint as Complaint
200#-0632-2001. We find that complainant's claim is an elaboration of
the matter that complainant raised in a prior complaint and was properly
dismissed by the agency pursuant to 29 C.F.R. § 1614.107(a)(1).
Final Decision:
Accordingly, the agency's decision to dismiss complainant's complaint was proper and is hereby AFFIRMED. | Alice Ritchie v. Department of Veterans Affairs
01A32769
June 4, 2004
.
Alice Ritchie,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A32769
Agency No. 200R-0632-2003100775
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated March 11, 2003, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
Believing that she was the victim of discrimination in reprisal for prior
EEO activity, complainant contacted the EEO office on November 13, 2002.
Informal efforts to resolve her concerns were unsuccessful.
On January 8, 2003, complainant filed a formal complaint.
In its final decision dated March 11, 2003, the agency determined that
the instant complaint was comprised of seven claims, that were identified
in the following fashion:
(1) on January 27, 2000, complainant received a memorandum regarding the
decision of the Nurse Professional Standards Board (NPSB) on her appeal
filed in July 1999 of the board action of May 7, 1999;
(2) on or around February 4, 2000, the Chief Nurse refused to promote
complainant to Nurse III because complainant was allegedly untimely with
her appeal to the NPSB;
(3) on August 1, 2001, complainant received a July 11, 2001 letter
regarding the May 2000 to May 2001 proficiency rating period that
erroneously stated that complainant had no non-nursing degrees;
(4) on or around May 8, 2002, the NPSB applied new qualification standards
to complainant's 2002 proficiency review;
(5) on June 5, 2002, complainant received a memorandum indicating that
her proficiency review was done at the Northport VAMC and not by VISN
III as indicated in a January 30, 2002 letter from the Chief Nurse;
(6) on September 18, 2002, complainant received an August 29, 2002 letter
from the Chief Nurse stating that complainant had declined to have her
2002 proficiency reviewed by VISN III and that the Newport NPSB would
not review historical data; and
(7) on December 20, 2002, complainant discovered that her board actions
still displayed erroneous information as stated in her EEO complaint that
is currently at hearing (ORM Case No. 200R-0632-2001103371 or 200H-1719).
The agency dismissed claims (1) through (6) for untimely Counselor
contact. The agency noted that when complainant was asked why she did not
contact the EEO office prior to November 13, 2002, complainant stated that
she discovered missing and altered documents in her Official Personnel
Folder (OPF) after the expiration of the 45-day limitation period.
The agency determined that complainant was aware of the erroneous and/or
missing documents at the time of the events in question. The agency
concluded that complainant attended training which informed her of the
EEO time frames; and that she was a trained EEO Counselor. The agency
dismissed claim (7) for stating same claim as that raised in a prior
complaint. Specifically, the agency noted that complainant addressed
the same issue in Case No. 200H-1719. In addition, the agency found
no continuing violation, determining that none of complainant's claims
(claims (1) through (6)) were timely and that they were not interrelated.
On appeal, complainant through her attorney, states that the
agency misconstrued the matters raised in the instant complaint
when it determined that complainant claimed that she was subjected
to disparate treatment with regard to the processing of NPSB actions.
Complainant's attorney argues that the main issue in the instant complaint
is complainant's claim that on June 5, 2002, she was notified that the
Nursing Board failed to promote her to Nurse Grade III.<1> Regarding
the matters identified by the agency as claims (1) - (7), identified
above, complainant's attorney argues that these matters were intended
to support and not supersede a claim regarding the promotion denial
in June 2002.
With respect to the agency's assertion that complainant was trained as
an EEO Counselor, complainant's attorney states "even if this were true,
she is not an attorney or versed in the legal technicalities underlying
this specialized area of law." Further, complainant's attorney states
that although complainant did not meet the 45-day limitation period,
that her complaint consists of a "series of events which should be viewed
as a continuum and ongoing in nature."
In response, the agency argues that complainant first initiated EEO
Counselor contact on July 8, 2002, regarding not being promoted to Nurse
III grade in May 2002. The agency stated that the EEO Counselor issued
a Notice of Right to File a Discrimination Complaint to complainant and
her representative on August 23, 2002, but that complainant did not file
a formal complaint on the issue of the promotion denial. The agency
argues that complainant, instead, again contacted an EEO Counselor
regarding claims of discrimination on November 13, 2002, alleging various
matters that caused her not to be promoted to the Nurse III grade from May
1993 to May 29, 2002, and started the EEO counseling process anew.
The record in this case contains a copy of the EEO Counselor's Report
following complainant's initiation of EEO Counselor contact on November
13, 2002. Therein, the EEO Counselor stated that complainant claimed
that she was undergoing EEO counseling about the timeliness of board
actions and the discrepancies in how information is processed and how the
erroneous information has been used to deny [complainant] a promotion
to the Registered Nurse, Level III. The EEO Counselor further stated
that complainant stated that this complaint is not about the failure
to promote because she has raised that issue in prior complaints.
Claims (1) - (6)
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, 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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The Commission notes that complainant initiated EEO Counselor contact on
July 8, 2002, regarding a promotion denial in late May 2002. However, the
record reflects that complainant abandoned this claim by not subsequently
filing a formal complaint on this matter. Complainant again contacted
an EEO Counselor on November 13, 2002, and the EEO Counselor's Report,
as well as the instant formal complaint, do not address the issue of
promotion denial. Rather, the complaint reflects that complainant
identified the matters raised in claims (1) - (7).
Complainant's initial EEO Counselor contact, on November 13, 2002,
is beyond the forty-five (45) day limitation period regarding the
matters identified in claims (1) - (6). The Commission determines that
complainant should have reasonably suspected discrimination well prior
to her initial EEO Counselor contact in November 2002. In addition,
complainant claims that her complaint is part of a continuing violation.
The Commission determines that a continuing violation analysis is not
necessary as there are no viable claims that occurred within forty-five
days of complainant's initial EEO Counselor contact.
Claim (7)
Complainant claimed that on December 20, 2002, she discovered that her
board actions still displayed erroneous information as stated in a prior
EEO complaint that she identified in her formal complaint as Complaint
200#-0632-2001. We find that complainant's claim is an elaboration of
the matter that complainant raised in a prior complaint and was properly
dismissed by the agency pursuant to 29 C.F.R. § 1614.107(a)(1).
Accordingly, the agency's decision to dismiss complainant's complaint
was proper and is hereby AFFIRMED.
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
June 4, 2004
__________________
Date
1While complainant's attorney refers to
a promotion denial on June 5, 2002, the Commission notes that other
evidence of record reflects that the denial occurred in late May 2002.
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202 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01985238.txt | 01985238.txt | TXT | text/plain | 12,495 | June 1, 1998 | Appeal Number: 01985225
Case Facts:
Appellant filed an appeal with this Commission from a final agency
decision 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. The final agency decision was received by
appellant on June 1, 1998. The appeal was postmarked June 23, 1998.
Accordingly, the appeal is timely (see 29 C.F.R. § 1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
The appellant filed a formal complaint on April 6, 1998, alleging
that he was the victim of unlawful employment discrimination on the
basis of race (Black), color (black) and reprisal (prior EEO activity)
when he was terminated on April 15, 1997. After initially accepting
this allegation for investigation on May 4, 1998, the agency issued a
final agency decision on May 28, 1998, dismissing the complaint under
29 C.F.R. § 1614.107(b) for failure to timely contact an EEO counselor.<1>
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints
of discrimination should be brought to the attention of the Equal
Employment Opportunity Counselor within forty-five (45) days of the
date of the matter alleged to be discriminatory or, in the case of a
personnel action, within forty-five (45) days of the effective date
of the action. The Commission has adopted a "reasonable suspicion"
standard (as opposed to a "supportive facts" standard) to determine
when the forty-five (45) day limitation period is triggered. See Ball
v. United States Postal Service, EEOC Request No. 05880247 (July 6, 1988).
Thus, 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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission. 29 C.F.R. § 1614.105(a)(2).
In the instant case, a review of the EEO Counselor's Inquiry report
provided by the agency reveals that appellant initiated contact with an
EEO counselor on March 17, 1998, significantly more than 45 days after
the alleged discriminatory termination of April 15, 1997.
On appeal, appellant alleges that he contacted the EEO counselor assigned
to the Orlando Processing and Distribution Center of Florida on or
about April 16, 1997 and informed that counselor that he believed his
termination was the result of discrimination. The appellant also alleges
that on April 17, 1997 he was issued an EEO informal complaint number
(1-H-328-0026-97), but that he received no other information concerning
his rights or any actions required of him to further his EEO claim and as
a result assumed that his claim was being handled by the EEO office<2>.
Appellant argues that his complaint should therefore not be dismissed
for failure to timely contact an EEO counselor, but should be remanded
for further review and investigation.
The agency did not address this allegation on appeal. However, even
assuming that appellant did initially contact an EEO counselor on or
about April 16, 1997, Commission precedent holds that for purposes of
tolling the time limit, the appellant must intend by initiating contact
to pursue EEO counseling. Snyder v. Department of Defense, EEOC Request
No. 0501061 (November 1, 1990). Here, on April 17, 1997, rather than
pursue counseling, appellant filed a union grievance in an effort to
reverse the termination. His grievance was denied by letter dated May
23, 1997.<3> He did not actively pursue counseling until March 18, 1998,
almost a year after the allegedly discriminatory event and more than 7
months after he failed to achieve success via the grievance process.<4>
Appellant offers no excuse for this passivity other than claiming it
was the EEO counselor's fiduciary duty to communicate with him.<5>
Appellant's contention that he initially contacted an EEO counselor
around April 16, 1997 and then assumed his claim was being handled
is insufficient to justify an extension of the applicable time limit
for this length of time. See Baldwin County Welcome Center v. Brown,
466 U.S. 147, 151 (1984) (per curiam) ("One who fails to act diligently
cannot invoke equitable principles to excuse lack of diligence"); Rys
v. United States Postal Service, 886 F.2d 443, 446 (1st Cir. 1989) ("to
find succor in equity a Title VII plaintiff must have diligently pursued
her claim"). Furthermore, appellant's use of the negotiated grievance
process does not toll the time limits for initiating EEO counseling.
Schermerhorn v. United States Postal Service, EEOC Request No. 05940729
(February 10, 1995).
Final Decision:
Accordingly, the appeal is timely (see 29 C.F.R. § 1614.402(a)), and is accepted in accordance with EEOC Order No. 960, as amended. The appellant filed a formal complaint on April 6, 1998, alleging that he was the victim of unlawful employment discrimination on the basis of race (Black), color (black) and reprisal (prior EEO activity) when he was terminated on April 15, 1997. After initially accepting this allegation for investigation on May 4, 1998, the agency issued a final agency decision on May 28, 1998, dismissing the complaint under 29 C.F.R. § 1614.107(b) for failure to timely contact an EEO counselor.<1> EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6, 1988). Thus, 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. EEOC Regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. 29 C.F.R. § 1614.105(a)(2). In the instant case, a review of the EEO Counselor's Inquiry report provided by the agency reveals that appellant initiated contact with an EEO counselor on March 17, 1998, significantly more than 45 days after the alleged discriminatory termination of April 15, 1997. On appeal, appellant alleges that he contacted the EEO counselor assigned to the Orlando Processing and Distribution Center of Florida on or about April 16, 1997 and informed that counselor that he believed his termination was the result of discrimination. The appellant also alleges that on April 17, 1997 he was issued an EEO informal complaint number (1-H-328-0026-97), but that he received no other information concerning his rights or any actions required of him to further his EEO claim and as a result assumed that his claim was being handled by the EEO office<2>. Appellant argues that his complaint should therefore not be dismissed for failure to timely contact an EEO counselor, but should be remanded for further review and investigation. The agency did not address this allegation on appeal. However, even assuming that appellant did initially contact an EEO counselor on or about April 16, 1997, Commission precedent holds that for purposes of tolling the time limit, the appellant must intend by initiating contact to pursue EEO counseling. Snyder v. Department of Defense, EEOC Request No. 0501061 (November 1, 1990). Here, on April 17, 1997, rather than pursue counseling, appellant filed a union grievance in an effort to reverse the termination. His grievance was denied by letter dated May 23, 1997.<3> He did not actively pursue counseling until March 18, 1998, almost a year after the allegedly discriminatory event and more than 7 months after he failed to achieve success via the grievance process.<4> Appellant offers no excuse for this passivity other than claiming it was the EEO counselor's fiduciary duty to communicate with him.<5> Appellant's contention that he initially contacted an EEO counselor around April 16, 1997 and then assumed his claim was being handled is insufficient to justify an extension of the applicable time limit for this length of time. See Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151 (1984) (per curiam) ("One who fails to act diligently cannot invoke equitable principles to excuse lack of diligence"); Rys v. United States Postal Service, 886 F.2d 443, 446 (1st Cir. 1989) ("to find succor in equity a Title VII plaintiff must have diligently pursued her claim"). Furthermore, appellant's use of the negotiated grievance process does not toll the time limits for initiating EEO counseling. Schermerhorn v. United States Postal Service, EEOC Request No. 05940729 (February 10, 1995). Accordingly, the agency's decision to dismiss appellant's complaint for failure to timely initiate EEO counseling is AFFIRMED. | Raymon L. Crook, )
Appellant, )
)
v. ) Appeal No. 01985225
) Agency No. 1H328006698
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Southeast/Southwest Region), )
Agency. )
______________________________)
DECISION
Appellant filed an appeal with this Commission from a final agency
decision 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. The final agency decision was received by
appellant on June 1, 1998. The appeal was postmarked June 23, 1998.
Accordingly, the appeal is timely (see 29 C.F.R. § 1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
The appellant filed a formal complaint on April 6, 1998, alleging
that he was the victim of unlawful employment discrimination on the
basis of race (Black), color (black) and reprisal (prior EEO activity)
when he was terminated on April 15, 1997. After initially accepting
this allegation for investigation on May 4, 1998, the agency issued a
final agency decision on May 28, 1998, dismissing the complaint under
29 C.F.R. § 1614.107(b) for failure to timely contact an EEO counselor.<1>
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints
of discrimination should be brought to the attention of the Equal
Employment Opportunity Counselor within forty-five (45) days of the
date of the matter alleged to be discriminatory or, in the case of a
personnel action, within forty-five (45) days of the effective date
of the action. The Commission has adopted a "reasonable suspicion"
standard (as opposed to a "supportive facts" standard) to determine
when the forty-five (45) day limitation period is triggered. See Ball
v. United States Postal Service, EEOC Request No. 05880247 (July 6, 1988).
Thus, 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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission. 29 C.F.R. § 1614.105(a)(2).
In the instant case, a review of the EEO Counselor's Inquiry report
provided by the agency reveals that appellant initiated contact with an
EEO counselor on March 17, 1998, significantly more than 45 days after
the alleged discriminatory termination of April 15, 1997.
On appeal, appellant alleges that he contacted the EEO counselor assigned
to the Orlando Processing and Distribution Center of Florida on or
about April 16, 1997 and informed that counselor that he believed his
termination was the result of discrimination. The appellant also alleges
that on April 17, 1997 he was issued an EEO informal complaint number
(1-H-328-0026-97), but that he received no other information concerning
his rights or any actions required of him to further his EEO claim and as
a result assumed that his claim was being handled by the EEO office<2>.
Appellant argues that his complaint should therefore not be dismissed
for failure to timely contact an EEO counselor, but should be remanded
for further review and investigation.
The agency did not address this allegation on appeal. However, even
assuming that appellant did initially contact an EEO counselor on or
about April 16, 1997, Commission precedent holds that for purposes of
tolling the time limit, the appellant must intend by initiating contact
to pursue EEO counseling. Snyder v. Department of Defense, EEOC Request
No. 0501061 (November 1, 1990). Here, on April 17, 1997, rather than
pursue counseling, appellant filed a union grievance in an effort to
reverse the termination. His grievance was denied by letter dated May
23, 1997.<3> He did not actively pursue counseling until March 18, 1998,
almost a year after the allegedly discriminatory event and more than 7
months after he failed to achieve success via the grievance process.<4>
Appellant offers no excuse for this passivity other than claiming it
was the EEO counselor's fiduciary duty to communicate with him.<5>
Appellant's contention that he initially contacted an EEO counselor
around April 16, 1997 and then assumed his claim was being handled
is insufficient to justify an extension of the applicable time limit
for this length of time. See Baldwin County Welcome Center v. Brown,
466 U.S. 147, 151 (1984) (per curiam) ("One who fails to act diligently
cannot invoke equitable principles to excuse lack of diligence"); Rys
v. United States Postal Service, 886 F.2d 443, 446 (1st Cir. 1989) ("to
find succor in equity a Title VII plaintiff must have diligently pursued
her claim"). Furthermore, appellant's use of the negotiated grievance
process does not toll the time limits for initiating EEO counseling.
Schermerhorn v. United States Postal Service, EEOC Request No. 05940729
(February 10, 1995).
Accordingly, the agency's decision to dismiss appellant's complaint for
failure to timely initiate EEO counseling is AFFIRMED.
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.
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.F.R.).
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:
Sept. 9, 1999
DATE
Carlton
M.
Hadden,
Acting
Director
Office
of
Federal
Operations
1 The final agency decision cites to 29 C.F.R. § 1614.105(a)(1) which
contains the applicable time limit as the basis for the dismissal, as
opposed to 29 C.F.R. § 1614.107(b) which requires dismissal of complaints
that do not comply with applicable time limits.
2 At this time, appellant also filed a grievance regarding his termination
and alleges that he should have received a letter from the EEO when the
grievance procedure was over, citing to the booklet entitled What You
Need to Know About EEO and the rule regarding deferring an EEO complaint
once a grievance is filed. This argument is misplaced in that appellant
had not yet filed a formal complaint when he filed his grievance.
3 On appeal, appellant notes that the grievance process continued
through July 1997, due to his appeal of the decision.
4 This 7 month time period is based on the acceptance of appellant's
allegation that the appeal of his grievance continued through July 1997.
5 There is Commission precedent excusing untimely contact with an
EEO counselor when an appellant had contacted an EEO Office, but then
chose to pursue the matter at issue through the grievance process and
did not actively pursue counseling until after his grievance was denied
(significantly more than 45 days after the alleged discriminatory event).
However, this line of cases involves situations wherein an EEO counselor
actively discouraged the complainant from continuing with the EEO
process. See Arino v. Social Security Administration, EEOC Request
No. 05950541 (June 13, 1996) and cases citing to it. The instant case
does not fit within this rubric, as appellant does not claim that the
EEO Office discouraged him from continuing with the EEO process.
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"Snyder v. Department of Defense, EEOC Request No. 0501061 (November 1, 1990)",
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203 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120152224.r.txt | 0120152224.r.txt | TXT | text/plain | 12,220 | Kellye C.,1 Complainant, v. Thomas E. Perez, Secretary, Department of Labor, Agency. | May 4, 2015 | Appeal Number: 0120152224
Background:
During the period at issue, Complainant worked as a Veterans' Correspondence Specialist at the Agency's Office of the Assistant Secretary for Veterans' Employment and Training in Washington D.C.
The record reflects that on November 14, 2014, Complainant initiated EEO Counselor contact, and on November 18, 2014, she received an email regarding her EEO rights and responsibilities, an informal EEO complaint form to complete and a set of questions to answer requesting additional information regarding her informal EEO complaint. On November 18, 2014, Complainant responded to the EEO Counselor's email by requesting an extension until November 28, 2014, to fill out the complaint form and answer the set of questions.
On December 1, 2014, Complainant sent an email to the EEO Counselor requesting additional time to respond to the requests for additional information and signed an extension for traditional counseling with a new deadline date for counseling on January 13, 2015. Between December 9, 2014 and January 12, 2015, Complainant failed to provide the EEO Counselor with the informal complaint form or with responses to the questions for additional information regarding her complaint. As a result, the EEO Counselor was unable to provide a counseling session within ninety (90) days, despite repeated requests, and Complainant's Notice of Right to File a formal EEO complaint was issued on January 13, 2015. The record reflects that Complainant filed her formal EEO complaint on January 29, 2015.
In her formal complaint, Complainant alleged that she was subjected to harassment and a hostile work environment on the bases of race, sex, disability, age, and in reprisal for prior EEO activity.
On
On May 4, 2015, the Agency issued an "administrative dismissal" of the complaint on the grounds that the claims had not been raised with an EEO Counselor and that it are not "like and related" to matters for which Complainant underwent EEO counseling, pursuant to 29 C.F.R. § 1614.107(a)(2).
The instant appeal from Complainant followed.
In response to Complainant's appeal, the Agency acknowledged that on March 17, 2015, it received Complainant's request to amend her complaint to add several new claims. The Agency stated that, due to an oversight, Complainant was not provided a counseling session on the amended claims. The Agency stated it is handling the new claims in Agency Case No. IM15-11-155, in which Complainant began EEO counseling on or around June 17, 2015.
Legal Analysis:
The Commission has held that an Agency should not dismiss a complaint when it has sufficient information upon which to base an adjudication. See Ross v. United States Postal Service, EEOC Request No. 05900693 (August 17, 1990); Brinson v. United States Postal Service, EEOC Request No. 05900193 (April 12, 1990). It is only in cases where the Complainant has engaged in delay or contumacious conduct and the record is insufficient or permit adjudication that the Commission has allowed a complaint to be dismissed for failure to cooperate. See Card v. United States Postal Service, EEOC Request No. 05970095 (April 23, 1998); Kroten v. United States Postal Service, EEOC Request No. 05940451 (December 22, 1994).
The record contains no persuasive evidence that Complainant engaged in delay or contumacious conduct in regard to the processing of the complaint. Moreover, a review of the instant formal complaint and the EEO Counselor's Report indicates that Complainant provided sufficient information to the EEO Counselor about various harassment incidents. The record reflects that the reasons Complainant felt that she was harassed and contains specific information regarding the harassment actions, the names of the alleged harassers, and the corrective action sought.
Therefore, we find that the Agency should provide Complainant with the opportunity to amend Agency Case No. IM15-11-155 (referenced in the Agency's statement on appeal) to include the claims the Agency dismissed in the instant complaint. If Agency Case No. IM15-11-155 is no longer active, the Agency shall provide Complainant, anew, with the opportunity to have EEO counseling on the matters raised in the instant formal complaint.
We REVERSE the Agency's final decision dismissing Complainant's formal complaint, defined herein as a harassment claim, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER
Within thirty (30) calendar days of the date that this decision becomes final, the Agency shall provide Complainant with an appointment to meet with an EEO counselor to clarify the claims she was raising in the instant complaint and assist her in amending Agency Case No. IM15-11-155 to include those claims. If Agency Case No. IM15-11-155 is no longer active, the Agency shall provide Complainant with EEO counseling and then notify her of her right to file a new complaint. In either instance, the EEO counseling period shall not exceed thirty (30) days, unless Complainant and the Agency agree in writing to extend EEO counseling for an additional period of no more than sixty (60) days.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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. | Kellye C.,1
Complainant,
v.
Thomas E. Perez,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120152224
Agency No. 15-11-054
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated May 4, 2015, dismissing a formal complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Veterans' Correspondence Specialist at the Agency's Office of the Assistant Secretary for Veterans' Employment and Training in Washington D.C.
The record reflects that on November 14, 2014, Complainant initiated EEO Counselor contact, and on November 18, 2014, she received an email regarding her EEO rights and responsibilities, an informal EEO complaint form to complete and a set of questions to answer requesting additional information regarding her informal EEO complaint. On November 18, 2014, Complainant responded to the EEO Counselor's email by requesting an extension until November 28, 2014, to fill out the complaint form and answer the set of questions.
On December 1, 2014, Complainant sent an email to the EEO Counselor requesting additional time to respond to the requests for additional information and signed an extension for traditional counseling with a new deadline date for counseling on January 13, 2015. Between December 9, 2014 and January 12, 2015, Complainant failed to provide the EEO Counselor with the informal complaint form or with responses to the questions for additional information regarding her complaint. As a result, the EEO Counselor was unable to provide a counseling session within ninety (90) days, despite repeated requests, and Complainant's Notice of Right to File a formal EEO complaint was issued on January 13, 2015. The record reflects that Complainant filed her formal EEO complaint on January 29, 2015.
In her formal complaint, Complainant alleged that she was subjected to harassment and a hostile work environment on the bases of race, sex, disability, age, and in reprisal for prior EEO activity.
On
On May 4, 2015, the Agency issued an "administrative dismissal" of the complaint on the grounds that the claims had not been raised with an EEO Counselor and that it are not "like and related" to matters for which Complainant underwent EEO counseling, pursuant to 29 C.F.R. § 1614.107(a)(2).
The instant appeal from Complainant followed.
In response to Complainant's appeal, the Agency acknowledged that on March 17, 2015, it received Complainant's request to amend her complaint to add several new claims. The Agency stated that, due to an oversight, Complainant was not provided a counseling session on the amended claims. The Agency stated it is handling the new claims in Agency Case No. IM15-11-155, in which Complainant began EEO counseling on or around June 17, 2015.
ANALYSIS AND FINDINGS
The Agency dismissed the instant formal complaint on the grounds that the claims raised therein had not been raised with an EEO Counselor and that are not "like and related" to matters for which Complainant underwent EEO counseling. However, given the particular circumstances of this case, we determine that the formal complaint is more properly analyzed in terms of failure to cooperate, pursuant to 29 C.F.R. § 1614.107(a)(7).
The Commission has held that an Agency should not dismiss a complaint when it has sufficient information upon which to base an adjudication. See Ross v. United States Postal Service, EEOC Request No. 05900693 (August 17, 1990); Brinson v. United States Postal Service, EEOC Request No. 05900193 (April 12, 1990). It is only in cases where the Complainant has engaged in delay or contumacious conduct and the record is insufficient or permit adjudication that the Commission has allowed a complaint to be dismissed for failure to cooperate. See Card v. United States Postal Service, EEOC Request No. 05970095 (April 23, 1998); Kroten v. United States Postal Service, EEOC Request No. 05940451 (December 22, 1994).
The record contains no persuasive evidence that Complainant engaged in delay or contumacious conduct in regard to the processing of the complaint. Moreover, a review of the instant formal complaint and the EEO Counselor's Report indicates that Complainant provided sufficient information to the EEO Counselor about various harassment incidents. The record reflects that the reasons Complainant felt that she was harassed and contains specific information regarding the harassment actions, the names of the alleged harassers, and the corrective action sought.
Therefore, we find that the Agency should provide Complainant with the opportunity to amend Agency Case No. IM15-11-155 (referenced in the Agency's statement on appeal) to include the claims the Agency dismissed in the instant complaint. If Agency Case No. IM15-11-155 is no longer active, the Agency shall provide Complainant, anew, with the opportunity to have EEO counseling on the matters raised in the instant formal complaint.
We REVERSE the Agency's final decision dismissing Complainant's formal complaint, defined herein as a harassment claim, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER
Within thirty (30) calendar days of the date that this decision becomes final, the Agency shall provide Complainant with an appointment to meet with an EEO counselor to clarify the claims she was raising in the instant complaint and assist her in amending Agency Case No. IM15-11-155 to include those claims. If Agency Case No. IM15-11-155 is no longer active, the Agency shall provide Complainant with EEO counseling and then notify her of her right to file a new complaint. In either instance, the EEO counseling period shall not exceed thirty (30) days, unless Complainant and the Agency agree in writing to extend EEO counseling for an additional period of no more than sixty (60) days.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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's signature
Carlton M. Hadden, Director
Office of Federal Operations
October 21, 2015
__________________
Date
------------------------------------------------------------
------------------------------------------------------------
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204 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01981792.txt | 01981792.txt | TXT | text/plain | 12,017 | January 28, 1999 | Appeal Number: 01981792
Case Facts:
The Commission finds that the agency's November 28, 1997 decision
dismissing appellant's complaint on the basis of untimely EEO counselor
contact, is not proper pursuant to the provisions of
Legal Analysis:
The Commission finds that the agency's November 28, 1997 decision
dismissing appellant's complaint on the basis of untimely EEO counselor
contact, is not proper pursuant to the provisions of EEOC Regulation 29
C.F.R.§1614.107(b).
Appellant sought EEO counseling on March 5, 1997, alleging that he had
been discriminated against on the bases of sex (male) and age (none
specified) when on August 20, 1996, the agency failed to reassign him
and promote him. The agency issued a final decision dismissing the
complaint on the grounds of untimely EEO counselor contact after finding
that appellant's initial EEO counselor contact on March 5, 1997, had been
untimely. The agency further found that although appellant alleged that
he was unaware of the 45-day time limit for initiating EEO counseling,
the record showed that he had been provided with EEO training in August
1993, and December 1996.
On appeal, appellant contends that he had "no counseling nor adequate
knowledge of the proper filing procedures dealing with discrimination
matters". Appellant further contends that he tried to contact several
EEO counselors between July 1996, and September 1996, but that they were
busy and kept on referring him to other counselors. Finally, appellant
provides copy of a letter dated August 26, 1996, in which he informed
the Chief of Human Resources that "there was possible bias in selection
process based on favoritism and preselection". Appellant claims that
he wrote this letter following the advice of the EEO Manager.
Concerning appellant's claim that he was unaware of the 45-day time limit,
the record shows that appellant participated in EEO training on August
4, 1993, and December 16, 1996. The Commission has held that where
there is an issue of timeliness, the agency always bears the burden of
obtaining sufficient information to support a reasoned determination as to
timeliness. Williams v. Department of Defense, EEOC Request No. 05920506
(August 25, 1992). The agency has met its burden concerning appellant's
claim that he was unaware of the time limits provided by EEOC Regulations.
We find that appellant had constructive knowledge of the 45-day time
limit. Pride v. United States Postal Service, EEOC Request No. 05930134
(August 19, 1993).
The record shows that as early as August 26, 1996, appellant wrote a
letter to the Chief of Human Resources informing him that "there was
possible bias in selection process based on favoritism and preselection".
The Commission has specifically held that internal efforts or appeals of
an agency's adverse action and/or the filing of a grievance do not toll
the running of the time limit to contact an EEO counselor. See Hosford
v. Department of Veterans Affairs, EEOC Request No. 05890038 (June
9, 1989). After writing the letter in question to the Chief of Human
Resources and accusing the agency of bias, appellant is unable to claim
that he was unaware of the alleged discriminatory event. The Commission
applies a "reasonable suspicion" standard to the triggering date for
determining the timeliness of the contact with an EEO counselor. Cochran
v. United States Postal Service, EEOC Request No. 05920399 (June 18,
1992). Under this standard, the time period for contacting an EEO
counselor is triggered when the complainant should reasonably suspect
discrimination, but before all the facts that would support a charge
of discrimination may have become apparent. Id.; Paredes v. Nagle,
27 FEP Cases 1345 (D.D.C. 1982). Based on the foregoing, we conclude
that appellant should have suspected discrimination as early as August
26, 1996.
Appellant claims, however, that he tried to seek EEO counseling but that
he was referred from one counselor to the next. Moreover, appellant
also claims that he sent the August 26, 1996 letter to Human Resources
pursuant to the advice provided by the EEO Manager. Because the agency
has not addressed appellant's contention that he was advised by the EEO
Manager to write a letter to the Human Resources Chief, rather than seek
EEO counseling, and it has not addressed the issue of whether appellant
was in fact denied EEO counseling by several named counselors, we find
that the agency must conduct a supplemental investigation of appellant's
arguments.
Final Decision:
Accordingly, the agency's decision dismissing the complaint on the basis of untimely EEO counselor contact is VACATED. | Albert E. Woods v. Department of Veterans Affairs
01981792
January 28, 1999
Albert E. Woods, )
Appellant, )
)
v. ) Appeal No. 01981792
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
The Commission finds that the agency's November 28, 1997 decision
dismissing appellant's complaint on the basis of untimely EEO counselor
contact, is not proper pursuant to the provisions of EEOC Regulation 29
C.F.R.§1614.107(b).
Appellant sought EEO counseling on March 5, 1997, alleging that he had
been discriminated against on the bases of sex (male) and age (none
specified) when on August 20, 1996, the agency failed to reassign him
and promote him. The agency issued a final decision dismissing the
complaint on the grounds of untimely EEO counselor contact after finding
that appellant's initial EEO counselor contact on March 5, 1997, had been
untimely. The agency further found that although appellant alleged that
he was unaware of the 45-day time limit for initiating EEO counseling,
the record showed that he had been provided with EEO training in August
1993, and December 1996.
On appeal, appellant contends that he had "no counseling nor adequate
knowledge of the proper filing procedures dealing with discrimination
matters". Appellant further contends that he tried to contact several
EEO counselors between July 1996, and September 1996, but that they were
busy and kept on referring him to other counselors. Finally, appellant
provides copy of a letter dated August 26, 1996, in which he informed
the Chief of Human Resources that "there was possible bias in selection
process based on favoritism and preselection". Appellant claims that
he wrote this letter following the advice of the EEO Manager.
Concerning appellant's claim that he was unaware of the 45-day time limit,
the record shows that appellant participated in EEO training on August
4, 1993, and December 16, 1996. The Commission has held that where
there is an issue of timeliness, the agency always bears the burden of
obtaining sufficient information to support a reasoned determination as to
timeliness. Williams v. Department of Defense, EEOC Request No. 05920506
(August 25, 1992). The agency has met its burden concerning appellant's
claim that he was unaware of the time limits provided by EEOC Regulations.
We find that appellant had constructive knowledge of the 45-day time
limit. Pride v. United States Postal Service, EEOC Request No. 05930134
(August 19, 1993).
The record shows that as early as August 26, 1996, appellant wrote a
letter to the Chief of Human Resources informing him that "there was
possible bias in selection process based on favoritism and preselection".
The Commission has specifically held that internal efforts or appeals of
an agency's adverse action and/or the filing of a grievance do not toll
the running of the time limit to contact an EEO counselor. See Hosford
v. Department of Veterans Affairs, EEOC Request No. 05890038 (June
9, 1989). After writing the letter in question to the Chief of Human
Resources and accusing the agency of bias, appellant is unable to claim
that he was unaware of the alleged discriminatory event. The Commission
applies a "reasonable suspicion" standard to the triggering date for
determining the timeliness of the contact with an EEO counselor. Cochran
v. United States Postal Service, EEOC Request No. 05920399 (June 18,
1992). Under this standard, the time period for contacting an EEO
counselor is triggered when the complainant should reasonably suspect
discrimination, but before all the facts that would support a charge
of discrimination may have become apparent. Id.; Paredes v. Nagle,
27 FEP Cases 1345 (D.D.C. 1982). Based on the foregoing, we conclude
that appellant should have suspected discrimination as early as August
26, 1996.
Appellant claims, however, that he tried to seek EEO counseling but that
he was referred from one counselor to the next. Moreover, appellant
also claims that he sent the August 26, 1996 letter to Human Resources
pursuant to the advice provided by the EEO Manager. Because the agency
has not addressed appellant's contention that he was advised by the EEO
Manager to write a letter to the Human Resources Chief, rather than seek
EEO counseling, and it has not addressed the issue of whether appellant
was in fact denied EEO counseling by several named counselors, we find
that the agency must conduct a supplemental investigation of appellant's
arguments.
Accordingly, the agency's decision dismissing the complaint on the basis
of untimely EEO counselor contact is VACATED. The complaint is REMANDED
for a supplemental investigation as ordered below.
ORDER
The agency is ORDERED to conduct a supplemental investigation to inquire
if appellant was in fact advised by the EEO manager to write to the Human
Resources Chief, rather than seek EEO counseling, and if he was in fact
denied EEO counseling by the agency EEO counselors. The agency shall
support its finding with affidavits by appellant and appropriate agency
officials, including the EEO Manager and EEO Counselors. Within sixty
(60) days of the date of this decision becoming final, the agency shall
either issue a FAD dismissing the complaint or accept the complaint
for processing. A copy of the final decision or notice of processing
must be submitted to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. §1614.503 (a). The appellant 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. §§ 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. §§ 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. §1614.410.
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. §l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. 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:
January 28, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations | [
"Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992)",
"Pride v. United States Postal Service, EEOC Request No. 05930134 (August 19, 1993)",
"Hosford v. Department of Veterans Affairs, EEOC Request No. 05890038 (June 9, 1989)",
"Cochran v. United States Postal Service, EEOC Request ... | [
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0.05462730675935745,
-0.012627101503312588,
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0.03... | |
205 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01992364_r.txt | 01992364_r.txt | TXT | text/plain | 12,082 | December
31, 1998 | Appeal Number: 01992364
Background:
Appellant initiated contact with an EEO Counselor on September 16, 1998.
On November 12, 1998, appellant filed a formal EEO complaint wherein
he alleged that he had been subjected to discriminatory harassment
on the bases of his race (black) and in reprisal for his previous EEO
activity when:
1. On April 10, 1998, the Supervisor wanted him to do collections because
another employee did not want to do them, and when the Supervisor spoke to
the shop steward about the issue, the Supervisor stated, using demeaning
gestures, that appellant would not have to do collections but he would
have a pigtail (part of another route) waiting for him when he returned
from the street.
2. On June 30, 1998, appellant approached the Supervisor regarding the
special treatment and the perception of discrimination. Appellant spoke
to him about two employees not being required to pull collections when
they were scheduled for it, and about these employees being repeatedly
given their days off while he and another employee were not given their
days off. Appellant stated that the Supervisor said to him that at
one time he may have been a racist but he is a different person and has
grown as a manager.
3. On September 14, 1998, appellant discovered that he had been scheduled
for station runs and late collections on September 16, 1998 and September
17, 1998, when two employees were available for work on those days.
A different supervisor told him that the schedule would not be changed
and he would have to deal with it.
In its final decision, the agency dismissed allegations 1-2 of appellant's
complaint on the grounds of failure to contact an EEO Counselor in a
timely manner. The agency determined that appellant's EEO contact of
September 16, 1998, occurred 159 days and 78 days, respectively, after
the incidents set forth in allegations 1-2. Allegation 3 was accepted
for investigation.
On appeal, appellant contends that he was unaware of the 45-day limitation
period for contacting an EEO Counselor. Appellant claims that this
information is not accessible to employees by stand up sessions and it
is not something that he would know directly. Appellant states that had
he known of the time period, he would have contacted an EEO Counselor
instead of seeking to address his concerns through his chain of command.
In response, the agency asserts that appellant had constructive notice
of the 45-day limitation period. The agency submits an affidavit from
the Postmaster of appellant's facility. In the affidavit, the Postmaster
states that the EEO poster has been posted on the bulletin board at the
office for at least three years; that the poster describes how to present
an EEO problem; and that the problem is to be raised within 45 calendar
days of the date of the alleged discriminatory act. The Postmaster
further stated that periodic talks are given at the office on diversity,
EEO, and sexual harassment.
Legal Analysis:
EEOC Regulation 29 C.F.R. §1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. §1614.105(a)(2) provides that the agency or the
Commission shall extend the 45-day time limit when the individual shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not have
known that the discriminatory matter or personnel action occurred, that
despite due diligence he or she was prevented by circumstances beyond his
or her control from contacting the counselor within the time limits, or
for other reasons considered sufficient by the agency or the Commission.
It is the Commission's policy that constructive knowledge will be
imputed to an employee when an employer has fulfilled its obligation
of informing employees of their rights and obligations under Title VII.
Thompson v. Department of the Army, EEOC Request No. 05910474 (September
12, 1991) (citing Kale v. Combined Insurance Co. of America, 861 F.2d 746
(1st Cir. 1988).
The Commission has held that information in an EEO Counselor's report
regarding posting of EEO information was inadequate to support application
of a constructive notice rule. Pride v. United States Postal Service,
EEOC Request No. 05930134 (August 19, 1993). The Commission found in
Pride that the agency had merely made a generalized affirmation that
it posted EEO information. Id. The Commission found that it could not
conclude that appellant's contact of an EEO Counselor was untimely without
specific evidence that the poster contained notice of the time limit. Id.
In terms of allegations 1-2, appellant alleged that he was subjected to
discriminatory harassment on the dates of April 10, 1998, and June 30,
1998, respectively. Appellant did not initiate contact with an EEO
Counselor until September 16, 1998, after the expiration of the 45-day
limitation period. Appellant stated that he pursued his concerns
through his chain of command and thus, his EEO contact was delayed.
The Commission has previously held, however, that the use of internal
agency procedures to resolve a complaint does not toll the limitations
period for initiating an EEO complaint. See Williams v. United States
Postal Service, EEOC Request No. 05910291 (April 25, 1991). We note that
appellant claims that he was unaware of the 45-day limitation period
for contacting an EEO Counselor. The affidavit of the Postmaster of
appellant's work facility indicates that an EEO poster has been posted
on the bulletin board for the past three years. The Postmaster asserts
that the EEO poster states that an EEO problem is to be presented within
45 calendar days of the date of the alleged discriminatory act. We find
that the agency has established that appellant had constructive notice
of the proper time period for contacting an EEO Counselor at the time
of the incidents raised.
Final Decision:
Accordingly, the appeal is timely (see 29 C.F.R. §1614.402(a)), and is accepted in accordance with EEOC Order No. 960, as amended. ISSUE PRESENTED The issue on appeal is whether the agency properly dismissed allegations 1-2 of appellant's complaint on the grounds that appellant failed to contact an EEO Counselor in a timely manner. BACKGROUND Appellant initiated contact with an EEO Counselor on September 16, 1998. On November 12, 1998, appellant filed a formal EEO complaint wherein he alleged that he had been subjected to discriminatory harassment on the bases of his race (black) and in reprisal for his previous EEO activity when: 1. On April 10, 1998, the Supervisor wanted him to do collections because another employee did not want to do them, and when the Supervisor spoke to the shop steward about the issue, the Supervisor stated, using demeaning gestures, that appellant would not have to do collections but he would have a pigtail (part of another route) waiting for him when he returned from the street. 2. On June 30, 1998, appellant approached the Supervisor regarding the special treatment and the perception of discrimination. Appellant spoke to him about two employees not being required to pull collections when they were scheduled for it, and about these employees being repeatedly given their days off while he and another employee were not given their days off. Appellant stated that the Supervisor said to him that at one time he may have been a racist but he is a different person and has grown as a manager. 3. On September 14, 1998, appellant discovered that he had been scheduled for station runs and late collections on September 16, 1998 and September 17, 1998, when two employees were available for work on those days. A different supervisor told him that the schedule would not be changed and he would have to deal with it. In its final decision, the agency dismissed allegations 1-2 of appellant's complaint on the grounds of failure to contact an EEO Counselor in a timely manner. The agency determined that appellant's EEO contact of September 16, 1998, occurred 159 days and 78 days, respectively, after the incidents set forth in allegations 1-2. Allegation 3 was accepted for investigation. On appeal, appellant contends that he was unaware of the 45-day limitation period for contacting an EEO Counselor. Appellant claims that this information is not accessible to employees by stand up sessions and it is not something that he would know directly. Appellant states that had he known of the time period, he would have contacted an EEO Counselor instead of seeking to address his concerns through his chain of command. In response, the agency asserts that appellant had constructive notice of the 45-day limitation period. The agency submits an affidavit from the Postmaster of appellant's facility. In the affidavit, the Postmaster states that the EEO poster has been posted on the bulletin board at the office for at least three years; that the poster describes how to present an EEO problem; and that the problem is to be raised within 45 calendar days of the date of the alleged discriminatory act. The Postmaster further stated that periodic talks are given at the office on diversity, EEO, and sexual harassment. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. §1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. §1614.105(a)(2) provides that the agency or the Commission shall extend the 45-day time limit when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. It is the Commission's policy that constructive knowledge will be imputed to an employee when an employer has fulfilled its obligation of informing employees of their rights and obligations under Title VII. Thompson v. Department of the Army, EEOC Request No. 05910474 (September 12, 1991) (citing Kale v. Combined Insurance Co. of America, 861 F.2d 746 (1st Cir. 1988). The Commission has held that information in an EEO Counselor's report regarding posting of EEO information was inadequate to support application of a constructive notice rule. Pride v. United States Postal Service, EEOC Request No. 05930134 (August 19, 1993). The Commission found in Pride that the agency had merely made a generalized affirmation that it posted EEO information. Id. The Commission found that it could not conclude that appellant's contact of an EEO Counselor was untimely without specific evidence that the poster contained notice of the time limit. Id. In terms of allegations 1-2, appellant alleged that he was subjected to discriminatory harassment on the dates of April 10, 1998, and June 30, 1998, respectively. Appellant did not initiate contact with an EEO Counselor until September 16, 1998, after the expiration of the 45-day limitation period. Appellant stated that he pursued his concerns through his chain of command and thus, his EEO contact was delayed. The Commission has previously held, however, that the use of internal agency procedures to resolve a complaint does not toll the limitations period for initiating an EEO complaint. See Williams v. United States Postal Service, EEOC Request No. 05910291 (April 25, 1991). We note that appellant claims that he was unaware of the 45-day limitation period for contacting an EEO Counselor. The affidavit of the Postmaster of appellant's work facility indicates that an EEO poster has been posted on the bulletin board for the past three years. The Postmaster asserts that the EEO poster states that an EEO problem is to be presented within 45 calendar days of the date of the alleged discriminatory act. We find that the agency has established that appellant had constructive notice of the proper time period for contacting an EEO Counselor at the time of the incidents raised. Accordingly, the agency's decision to dismiss allegations 1-2 of appellant's complaint on the grounds of untimely EEO contact was proper and is AFFIRMED. | Larry D. Thomas, )
Appellant, )
)
v. ) Appeal No. 01992364
) Agency No. 4-D-290-0005-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency 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. The final agency decision was issued on December
31, 1998. The appeal was postmarked January 29, 1999. Accordingly,
the appeal is timely (see 29 C.F.R. §1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed allegations
1-2 of appellant's complaint on the grounds that appellant failed to
contact an EEO Counselor in a timely manner.
BACKGROUND
Appellant initiated contact with an EEO Counselor on September 16, 1998.
On November 12, 1998, appellant filed a formal EEO complaint wherein
he alleged that he had been subjected to discriminatory harassment
on the bases of his race (black) and in reprisal for his previous EEO
activity when:
1. On April 10, 1998, the Supervisor wanted him to do collections because
another employee did not want to do them, and when the Supervisor spoke to
the shop steward about the issue, the Supervisor stated, using demeaning
gestures, that appellant would not have to do collections but he would
have a pigtail (part of another route) waiting for him when he returned
from the street.
2. On June 30, 1998, appellant approached the Supervisor regarding the
special treatment and the perception of discrimination. Appellant spoke
to him about two employees not being required to pull collections when
they were scheduled for it, and about these employees being repeatedly
given their days off while he and another employee were not given their
days off. Appellant stated that the Supervisor said to him that at
one time he may have been a racist but he is a different person and has
grown as a manager.
3. On September 14, 1998, appellant discovered that he had been scheduled
for station runs and late collections on September 16, 1998 and September
17, 1998, when two employees were available for work on those days.
A different supervisor told him that the schedule would not be changed
and he would have to deal with it.
In its final decision, the agency dismissed allegations 1-2 of appellant's
complaint on the grounds of failure to contact an EEO Counselor in a
timely manner. The agency determined that appellant's EEO contact of
September 16, 1998, occurred 159 days and 78 days, respectively, after
the incidents set forth in allegations 1-2. Allegation 3 was accepted
for investigation.
On appeal, appellant contends that he was unaware of the 45-day limitation
period for contacting an EEO Counselor. Appellant claims that this
information is not accessible to employees by stand up sessions and it
is not something that he would know directly. Appellant states that had
he known of the time period, he would have contacted an EEO Counselor
instead of seeking to address his concerns through his chain of command.
In response, the agency asserts that appellant had constructive notice
of the 45-day limitation period. The agency submits an affidavit from
the Postmaster of appellant's facility. In the affidavit, the Postmaster
states that the EEO poster has been posted on the bulletin board at the
office for at least three years; that the poster describes how to present
an EEO problem; and that the problem is to be raised within 45 calendar
days of the date of the alleged discriminatory act. The Postmaster
further stated that periodic talks are given at the office on diversity,
EEO, and sexual harassment.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. §1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. §1614.105(a)(2) provides that the agency or the
Commission shall extend the 45-day time limit when the individual shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not have
known that the discriminatory matter or personnel action occurred, that
despite due diligence he or she was prevented by circumstances beyond his
or her control from contacting the counselor within the time limits, or
for other reasons considered sufficient by the agency or the Commission.
It is the Commission's policy that constructive knowledge will be
imputed to an employee when an employer has fulfilled its obligation
of informing employees of their rights and obligations under Title VII.
Thompson v. Department of the Army, EEOC Request No. 05910474 (September
12, 1991) (citing Kale v. Combined Insurance Co. of America, 861 F.2d 746
(1st Cir. 1988).
The Commission has held that information in an EEO Counselor's report
regarding posting of EEO information was inadequate to support application
of a constructive notice rule. Pride v. United States Postal Service,
EEOC Request No. 05930134 (August 19, 1993). The Commission found in
Pride that the agency had merely made a generalized affirmation that
it posted EEO information. Id. The Commission found that it could not
conclude that appellant's contact of an EEO Counselor was untimely without
specific evidence that the poster contained notice of the time limit. Id.
In terms of allegations 1-2, appellant alleged that he was subjected to
discriminatory harassment on the dates of April 10, 1998, and June 30,
1998, respectively. Appellant did not initiate contact with an EEO
Counselor until September 16, 1998, after the expiration of the 45-day
limitation period. Appellant stated that he pursued his concerns
through his chain of command and thus, his EEO contact was delayed.
The Commission has previously held, however, that the use of internal
agency procedures to resolve a complaint does not toll the limitations
period for initiating an EEO complaint. See Williams v. United States
Postal Service, EEOC Request No. 05910291 (April 25, 1991). We note that
appellant claims that he was unaware of the 45-day limitation period
for contacting an EEO Counselor. The affidavit of the Postmaster of
appellant's work facility indicates that an EEO poster has been posted
on the bulletin board for the past three years. The Postmaster asserts
that the EEO poster states that an EEO problem is to be presented within
45 calendar days of the date of the alleged discriminatory act. We find
that the agency has established that appellant had constructive notice
of the proper time period for contacting an EEO Counselor at the time
of the incidents raised. Accordingly, the agency's decision to dismiss
allegations 1-2 of appellant's complaint on the grounds of untimely EEO
contact was proper and is AFFIRMED.
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. 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 (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:
October 21, 1999
DATE
Carlton
M. Hadden,
Acting
Director
Office of Federal Operations | [
"Title VII. Thompson v. Department of the Army, EEOC Request No. 05910474 (September 12, 1991)",
"Pride v. United States Postal Service, EEOC Request No. 05930134 (August 19, 1993)",
"Williams v. United States Postal Service, EEOC Request No. 05910291 (April 25, 1991)",
"861 F.2d 746"
] | [
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0.07251107692718506,
0.030563123524188995,
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0.024504661560058594,
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0.012314233928918839,
-0.04214705526828766,
0.0... | |
206 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01992364.txt | 01992364.txt | TXT | text/plain | 11,985 | October 21, 1999 | Appeal Number: 01992364
Background:
Appellant initiated contact with an EEO Counselor on September 16, 1998.
On November 12, 1998, appellant filed a formal EEO complaint wherein he
alleged that he had been subjected to discriminatory harassment on the
bases of his race (black) and in reprisal for his previous EEO activity
when:
1. On April 10, 1998, the Supervisor wanted him to do collections because
another employee did not want to do them, and when the Supervisor spoke to
the shop steward about the issue, the Supervisor stated, using demeaning
gestures, that appellant would not have to do collections but he would
have a pigtail (part of another route) waiting for him when he returned
from the street.
2. On June 30, 1998, appellant approached the Supervisor regarding the
special treatment and the perception of discrimination. Appellant spoke
to him about two employees not being required to pull collections when
they were scheduled for it, and about these employees being repeatedly
given their days off while he and another employee were not given their
days off. Appellant stated that the Supervisor said to him that at
one time he may have been a racist but he is a different person and has
grown as a manager.
3. On September 14, 1998, appellant discovered that he had been scheduled
for station runs and late collections on September 16, 1998 and September
17, 1998, when two employees were available for work on those days.
A different supervisor told him that the schedule would not be changed
and he would have to deal with it.
In its final decision, the agency dismissed allegations 1-2 of appellant's
complaint on the grounds of failure to contact an EEO Counselor in a
timely manner. The agency determined that appellant's EEO contact of
September 16, 1998, occurred 159 days and 78 days, respectively, after
the incidents set forth in allegations 1-2. Allegation 3 was accepted
for investigation.
On appeal, appellant contends that he was unaware of the 45-day limitation
period for contacting an EEO Counselor. Appellant claims that this
information is not accessible to employees by stand up sessions and it
is not something that he would know directly. Appellant states that had
he known of the time period, he would have contacted an EEO Counselor
instead of seeking to address his concerns through his chain of command.
In response, the agency asserts that appellant had constructive notice
of the 45-day limitation period. The agency submits an affidavit from
the Postmaster of appellant's facility. In the affidavit, the Postmaster
states that the EEO poster has been posted on the bulletin board at the
office for at least three years; that the poster describes how to present
an EEO problem; and that the problem is to be raised within 45 calendar
days of the date of the alleged discriminatory act. The Postmaster
further stated that periodic talks are given at the office on diversity,
EEO, and sexual harassment.
Legal Analysis:
EEOC Regulation 29 C.F.R. §1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. §1614.105(a)(2) provides that the agency or the
Commission shall extend the 45-day time limit when the individual shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not have
known that the discriminatory matter or personnel action occurred, that
despite due diligence he or she was prevented by circumstances beyond his
or her control from contacting the counselor within the time limits, or
for other reasons considered sufficient by the agency or the Commission.
It is the Commission's policy that constructive knowledge will be
imputed to an employee when an employer has fulfilled its obligation
of informing employees of their rights and obligations under Title VII.
Thompson v. Department of the Army, EEOC Request No. 05910474 (September
12, 1991) (citing Kale v. Combined Insurance Co. of America, 861 F.2d 746
(1st Cir. 1988).
The Commission has held that information in an EEO Counselor's report
regarding posting of EEO information was inadequate to support application
of a constructive notice rule. Pride v. United States Postal Service,
EEOC Request No. 05930134 (August 19, 1993). The Commission found in
Pride that the agency had merely made a generalized affirmation that
it posted EEO information. Id. The Commission found that it could not
conclude that appellant's contact of an EEO Counselor was untimely without
specific evidence that the poster contained notice of the time limit.
Id.
In terms of allegations 1-2, appellant alleged that he was subjected to
discriminatory harassment on the dates of April 10, 1998, and June 30,
1998, respectively. Appellant did not initiate contact with an EEO
Counselor until September 16, 1998, after the expiration of the 45-day
limitation period. Appellant stated that he pursued his concerns
through his chain of command and thus, his EEO contact was delayed.
The Commission has previously held, however, that the use of internal
agency procedures to resolve a complaint does not toll the limitations
period for initiating an EEO complaint. See Williams v. United States
Postal Service, EEOC Request No. 05910291 (April 25, 1991). We note that
appellant claims that he was unaware of the 45-day limitation period
for contacting an EEO Counselor. The affidavit of the Postmaster of
appellant's work facility indicates that an EEO poster has been posted
on the bulletin board for the past three years. The Postmaster asserts
that the EEO poster states that an EEO problem is to be presented within
45 calendar days of the date of the alleged discriminatory act. We find
that the agency has established that appellant had constructive notice
of the proper time period for contacting an EEO Counselor at the time
of the incidents raised.
Final Decision:
Accordingly, the appeal is timely (see 29 C.F.R. §1614.402(a)), and is accepted in accordance with EEOC Order No. 960, as amended. ISSUE PRESENTED The issue on appeal is whether the agency properly dismissed allegations 1-2 of appellant's complaint on the grounds that appellant failed to contact an EEO Counselor in a timely manner. BACKGROUND Appellant initiated contact with an EEO Counselor on September 16, 1998. On November 12, 1998, appellant filed a formal EEO complaint wherein he alleged that he had been subjected to discriminatory harassment on the bases of his race (black) and in reprisal for his previous EEO activity when: 1. On April 10, 1998, the Supervisor wanted him to do collections because another employee did not want to do them, and when the Supervisor spoke to the shop steward about the issue, the Supervisor stated, using demeaning gestures, that appellant would not have to do collections but he would have a pigtail (part of another route) waiting for him when he returned from the street. 2. On June 30, 1998, appellant approached the Supervisor regarding the special treatment and the perception of discrimination. Appellant spoke to him about two employees not being required to pull collections when they were scheduled for it, and about these employees being repeatedly given their days off while he and another employee were not given their days off. Appellant stated that the Supervisor said to him that at one time he may have been a racist but he is a different person and has grown as a manager. 3. On September 14, 1998, appellant discovered that he had been scheduled for station runs and late collections on September 16, 1998 and September 17, 1998, when two employees were available for work on those days. A different supervisor told him that the schedule would not be changed and he would have to deal with it. In its final decision, the agency dismissed allegations 1-2 of appellant's complaint on the grounds of failure to contact an EEO Counselor in a timely manner. The agency determined that appellant's EEO contact of September 16, 1998, occurred 159 days and 78 days, respectively, after the incidents set forth in allegations 1-2. Allegation 3 was accepted for investigation. On appeal, appellant contends that he was unaware of the 45-day limitation period for contacting an EEO Counselor. Appellant claims that this information is not accessible to employees by stand up sessions and it is not something that he would know directly. Appellant states that had he known of the time period, he would have contacted an EEO Counselor instead of seeking to address his concerns through his chain of command. In response, the agency asserts that appellant had constructive notice of the 45-day limitation period. The agency submits an affidavit from the Postmaster of appellant's facility. In the affidavit, the Postmaster states that the EEO poster has been posted on the bulletin board at the office for at least three years; that the poster describes how to present an EEO problem; and that the problem is to be raised within 45 calendar days of the date of the alleged discriminatory act. The Postmaster further stated that periodic talks are given at the office on diversity, EEO, and sexual harassment. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. §1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. §1614.105(a)(2) provides that the agency or the Commission shall extend the 45-day time limit when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. It is the Commission's policy that constructive knowledge will be imputed to an employee when an employer has fulfilled its obligation of informing employees of their rights and obligations under Title VII. Thompson v. Department of the Army, EEOC Request No. 05910474 (September 12, 1991) (citing Kale v. Combined Insurance Co. of America, 861 F.2d 746 (1st Cir. 1988). The Commission has held that information in an EEO Counselor's report regarding posting of EEO information was inadequate to support application of a constructive notice rule. Pride v. United States Postal Service, EEOC Request No. 05930134 (August 19, 1993). The Commission found in Pride that the agency had merely made a generalized affirmation that it posted EEO information. Id. The Commission found that it could not conclude that appellant's contact of an EEO Counselor was untimely without specific evidence that the poster contained notice of the time limit. Id. In terms of allegations 1-2, appellant alleged that he was subjected to discriminatory harassment on the dates of April 10, 1998, and June 30, 1998, respectively. Appellant did not initiate contact with an EEO Counselor until September 16, 1998, after the expiration of the 45-day limitation period. Appellant stated that he pursued his concerns through his chain of command and thus, his EEO contact was delayed. The Commission has previously held, however, that the use of internal agency procedures to resolve a complaint does not toll the limitations period for initiating an EEO complaint. See Williams v. United States Postal Service, EEOC Request No. 05910291 (April 25, 1991). We note that appellant claims that he was unaware of the 45-day limitation period for contacting an EEO Counselor. The affidavit of the Postmaster of appellant's work facility indicates that an EEO poster has been posted on the bulletin board for the past three years. The Postmaster asserts that the EEO poster states that an EEO problem is to be presented within 45 calendar days of the date of the alleged discriminatory act. We find that the agency has established that appellant had constructive notice of the proper time period for contacting an EEO Counselor at the time of the incidents raised. Accordingly, the agency's decision to dismiss allegations 1-2 of appellant's complaint on the grounds of untimely EEO contact was proper and is AFFIRMED. | Larry D. Thomas v. United States Postal Service
01992364
October 21, 1999
Larry D. Thomas, )
Appellant, )
)
v. ) Appeal No. 01992364
) Agency No. 4-D-290-0005-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency 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. The final agency decision was issued on December
31, 1998. The appeal was postmarked January 29, 1999. Accordingly,
the appeal is timely (see 29 C.F.R. §1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed allegations
1-2 of appellant's complaint on the grounds that appellant failed to
contact an EEO Counselor in a timely manner.
BACKGROUND
Appellant initiated contact with an EEO Counselor on September 16, 1998.
On November 12, 1998, appellant filed a formal EEO complaint wherein he
alleged that he had been subjected to discriminatory harassment on the
bases of his race (black) and in reprisal for his previous EEO activity
when:
1. On April 10, 1998, the Supervisor wanted him to do collections because
another employee did not want to do them, and when the Supervisor spoke to
the shop steward about the issue, the Supervisor stated, using demeaning
gestures, that appellant would not have to do collections but he would
have a pigtail (part of another route) waiting for him when he returned
from the street.
2. On June 30, 1998, appellant approached the Supervisor regarding the
special treatment and the perception of discrimination. Appellant spoke
to him about two employees not being required to pull collections when
they were scheduled for it, and about these employees being repeatedly
given their days off while he and another employee were not given their
days off. Appellant stated that the Supervisor said to him that at
one time he may have been a racist but he is a different person and has
grown as a manager.
3. On September 14, 1998, appellant discovered that he had been scheduled
for station runs and late collections on September 16, 1998 and September
17, 1998, when two employees were available for work on those days.
A different supervisor told him that the schedule would not be changed
and he would have to deal with it.
In its final decision, the agency dismissed allegations 1-2 of appellant's
complaint on the grounds of failure to contact an EEO Counselor in a
timely manner. The agency determined that appellant's EEO contact of
September 16, 1998, occurred 159 days and 78 days, respectively, after
the incidents set forth in allegations 1-2. Allegation 3 was accepted
for investigation.
On appeal, appellant contends that he was unaware of the 45-day limitation
period for contacting an EEO Counselor. Appellant claims that this
information is not accessible to employees by stand up sessions and it
is not something that he would know directly. Appellant states that had
he known of the time period, he would have contacted an EEO Counselor
instead of seeking to address his concerns through his chain of command.
In response, the agency asserts that appellant had constructive notice
of the 45-day limitation period. The agency submits an affidavit from
the Postmaster of appellant's facility. In the affidavit, the Postmaster
states that the EEO poster has been posted on the bulletin board at the
office for at least three years; that the poster describes how to present
an EEO problem; and that the problem is to be raised within 45 calendar
days of the date of the alleged discriminatory act. The Postmaster
further stated that periodic talks are given at the office on diversity,
EEO, and sexual harassment.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. §1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. §1614.105(a)(2) provides that the agency or the
Commission shall extend the 45-day time limit when the individual shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not have
known that the discriminatory matter or personnel action occurred, that
despite due diligence he or she was prevented by circumstances beyond his
or her control from contacting the counselor within the time limits, or
for other reasons considered sufficient by the agency or the Commission.
It is the Commission's policy that constructive knowledge will be
imputed to an employee when an employer has fulfilled its obligation
of informing employees of their rights and obligations under Title VII.
Thompson v. Department of the Army, EEOC Request No. 05910474 (September
12, 1991) (citing Kale v. Combined Insurance Co. of America, 861 F.2d 746
(1st Cir. 1988).
The Commission has held that information in an EEO Counselor's report
regarding posting of EEO information was inadequate to support application
of a constructive notice rule. Pride v. United States Postal Service,
EEOC Request No. 05930134 (August 19, 1993). The Commission found in
Pride that the agency had merely made a generalized affirmation that
it posted EEO information. Id. The Commission found that it could not
conclude that appellant's contact of an EEO Counselor was untimely without
specific evidence that the poster contained notice of the time limit.
Id.
In terms of allegations 1-2, appellant alleged that he was subjected to
discriminatory harassment on the dates of April 10, 1998, and June 30,
1998, respectively. Appellant did not initiate contact with an EEO
Counselor until September 16, 1998, after the expiration of the 45-day
limitation period. Appellant stated that he pursued his concerns
through his chain of command and thus, his EEO contact was delayed.
The Commission has previously held, however, that the use of internal
agency procedures to resolve a complaint does not toll the limitations
period for initiating an EEO complaint. See Williams v. United States
Postal Service, EEOC Request No. 05910291 (April 25, 1991). We note that
appellant claims that he was unaware of the 45-day limitation period
for contacting an EEO Counselor. The affidavit of the Postmaster of
appellant's work facility indicates that an EEO poster has been posted
on the bulletin board for the past three years. The Postmaster asserts
that the EEO poster states that an EEO problem is to be presented within
45 calendar days of the date of the alleged discriminatory act. We find
that the agency has established that appellant had constructive notice
of the proper time period for contacting an EEO Counselor at the time
of the incidents raised. Accordingly, the agency's decision to dismiss
allegations 1-2 of appellant's complaint on the grounds of untimely EEO
contact was proper and is AFFIRMED.
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. 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 (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:
October 21, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations | [
"Title VII. Thompson v. Department of the Army, EEOC Request No. 05910474 (September 12, 1991)",
"Pride v. United States Postal Service, EEOC Request No. 05930134 (August 19, 1993)",
"Williams v. United States Postal Service, EEOC Request No. 05910291 (April 25, 1991)",
"861 F.2d 746"
] | [
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207 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01976592.txt | 01976592.txt | TXT | text/plain | 35,232 | August 30, 1997 | Appeal Number: 01976592
Complaint Allegations:
in her complaint and on appeal that she contacted EEO officials in June and September 1994, the agency failed to address these contentions in FAD-1. The Commission further noted that the agency failed to address appellant's claim that the allegations were interrelated as a pattern of harassment and constituted a continuing violation. Accordingly, the agency was ordered to conduct an investigation on the issue of timeliness of EEO contact. Specifically, the agency was directed to investigate which officials were contacted, on what dates and what was discussed and to conduct an analysis of appellant's allegation of a continuing violation. On July 28, 1997, the agency issued a new final decision (FAD-2). The agency framed the accepted allegations as whether appellant was discriminated against when: a. on the bases of race (White), sex (female) and age (August 18, 1946), she did not receive her performance rating for the period ending January 31, 1995, until August 22, 1995; 3b. on the bases of sex, her request for continuation of pay, filed on September 6, 1995, was denied. The agency framed the dismissed allegations as whether appellant was discriminated against when: 4a. on the bases of race and sex, she was denied the opportunity to compete for the position of Employee Relations Specialist, GS-230-09 in September 1989; 4b. on the bases of age and sex, she was directed to complete a DD Form 398 in June 1994; 4c. on the bases of race, she was not selected for the position of Employee Relations Specialist, GS-230-09 in October 1994; 4d. on the bases of race and age, she was not given the opportunity to be promoted to the position of Equal Opportunity Employment Specialist, GS-260-09 in January 1995; 4e. on the bases of sex, race, and age, she was reassigned from Code 112 to Code 114 in July 1995; and 4f. on the bases of race and sex, her access to classified information and to the Controlled Industrial Area was suspended on July 26, 1995.<1> In dismissing allegations 4a-4f, the agency noted that appellant did not initiate contact with an EEO Counselor until September 20, 1995. The agency stated that although appellant alleged that she initiated Counselor contact in June and September 1994, there were no records of any such contacts. The agency also stated that its February 19, 1997 Report of Supplemental Investigation (Report) indicated that EEO contacts prior to September 20, 1995 were informal and did not involve allegations of discrimination. The agency further stated that appellant was aware of the time limits for timely contact and failed to provide justification to extend the time limit. The agency also stated that the dismissed allegations did not constitute a continuing violation because the allegations were distinct and unrelated and occurred over a number of years. Definition of the Issues of the Complaint On appeal, appellant asserts that allegations 3b and 4a through 4f were not properly defined.<2> Appellant does not dispute allegation a. Appellant indicates that allegation 3b should be specifically framed as follows: her request for continuation of pay, filed on September 6, 1995, was not properly processed and she was not advised of proper procedure, nor informed that she could not be placed on trauma leave. A review of the complaint reflects that appellant alleged that she filed for continuation of pay and her request was not properly processed. Appellant, it appears, is not challenging the denial of her continuation of pay but is instead challenging the processing of her continuation of pay as discriminatory. Accordingly, we redefine allegation 3b as follows: whether because of appellant's sex, her request for continuation of pay made on or about September 6, 1995, was improperly processed. Appellant also contends that allegation 4a should be worded specifically as follows: her application was not rated so that she could be considered/compete for the position of Employee Relations Specialist GS-230-5/7/9/11 in May 1989. We find that appellant's dissatisfaction with the framing of the allegation centers on the agency's choice of words. The action that appellant is challenging in the allegation is that she was not offered or selected for the position because the agency failed to rate her application for the position. The agency has therefore properly defined the allegation. However, the allegation should be revised to include all the grade levels for the disputed position. A review of appellant's concerns regarding the framing of allegation 4b reveals that appellant wants the agency to include background and explanatory information regarding the completion of the Form 398 in the allegation. We find no error in the agency's omission of background information in its framing of the allegation.<3> Regarding allegation 4c, we find that appellant is merely providing more information to elaborate the issue of her non-selection for the position. The allegation therefore was properly defined. Regarding allegation 4d, appellant asserts that the allegation should be framed specifically as follows: on the bases of her race and age, she was not given the opportunity to compete nor considered for the position of Equal Employment Opportunity Specialist, GS-260-09 in January 1995. Here again, appellant's objections to the framing of the allegation center on the agency's choice of words. The allegation was therefore properly defined. With respect to allegation 4e, appellant contends that the allegation should be defined specifically as follows: whether because of her sex, race and age, she was improperly assigned to Code 114 in July 1995. We see no error in the agency's definition of the issue. Regarding allegation 4f, appellant contends that the allegation is not complete and the following statement should be added: security denied her due process by not processing the appeal of her suspension of access to "DONCAF" so that she could be given a final decision and appeal through the proper procedure. Because the due process issue is inextricably intertwined and related to the suspension issue, we find no error in the agency's definition of the allegation. In summary, we find that the agency's definition of allegation 3b was improper and should be redefined as set forth above. The agency's definition of allegations 4a-4f was proper as specified herein. Failure to Address Issues in Complaint The Commission has held that failure to address an allegation in a complaint is tantamount to dismissal by the agency. See Kapp v. Department of the Navy, EEOC Request No. 05940662 (January 23, 1995). Appellant contends on appeal that the agency failed to address a number of issues raised in her complaint. Specifically, appellant identified the unaddressed allegations as follows: (a) whether a conflict of interest existed when EEO Counselor DM, investigated her complaint; (b) whether she was improperly assigned to Code 114; (c) whether her retirement was involuntary and she was not provided an exit interview; (d) whether Person A was improperly assigned to the position of Employee Development Specialist; (e) whether appellant was not provided with training opportunities, including EEO training; (f) whether Person B was noncompetitively promoted in May 1995, an action that appellant did not become aware of until December 1995; (g) continuing violations, harassment/hostile work environment; (h) ongoing harassment/continuing violations; and (i) performing higher level duties and her refusal to sign her performance evaluations. Allegation (a) EEOC Regulation 29 C.F.R.§1614.107(a) provides that the agency shall dismiss a complaint or a portion of a complaint that fails to state a claim under §1614.103 or §1614.106(a) or states the same claim that is pending before or has been decided by the agency or Commission. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disability. The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). We find that while allegation (a) was not addressed by the agency in its final decision, the allegation fails to state a claim. Allegation (a) is a claim of improper processing and, as such, does not state a processable claim. See Kleinman v. U.S. Postal Service, EEOC Request No. 05940579 (September 22, 1994); Story v. U.S. Postal Service, EEOC Appeal No. 01965883, (March 13, 1997). When such an allegation is raised, the agency should refer the complainant to the agency officials responsible for the quality of complaint processing, and those individuals should earnestly attempt to resolve dissatisfaction with the complaints process as early as possible. EEO Management Directive 110 (4-8). We note that EEO Counselor DM, appellant's EEO Counselor for the September 20, 1995 EEO contact, was one of the parties that appellant identified in her complaint as having been provided with EEO training and having been given a temporary promotion to Employee Relations Specialist GS-9. We find, however, that appellant has not demonstrated how she was harmed by being counseled by EEO Counselor DM. Furthermore, appellant has not stated that she requested or was denied a change of Counselor. Allegations (b) and (h) Allegation (b) states the same claim as allegation 4e and is therefore properly dismissed pursuant to 29 C.F.R. §1614.107(a). Both allegations pertain to appellant's reassignment from one Code to another in July 1995. Although 29 C.F.R. §1614.107(a) generally applies to a situation where an individual files more than one complaint containing the same allegations, we find it similarly applicable where a complaint contains the same allegations. See Cheh v. Nuclear Regulatory Commission, EEOC Appeal No. 01952389 (September 14, 1995). Because allegation (h) is the same allegation as allegation (g), it is also properly dismissed. Allegations (c), (d), (e), (f), (g), and (i) In the narrative statement appended to her complaint, appellant alleged that she was forced to retire because of the agency's alleged discriminatory actions (allegation c); that she was not given an exit interview (allegation c); that in 1993 or 1994, she was not provided EEO training (allegation e); that she was subjected to harassment and a hostile work environment (allegation g); and that since 1989, she was performing work at a GS-9 and GS-11 grade levels although she was a GS-7 (allegation i). Accordingly, the agency's failure to address these allegations in its final decisions was in error. Accordingly, we hereby remand allegations (c) through (g), and (i) for further processing. Untimely EEO Contact EEOC Regulation 29 C.F.R. §1613.214(a)(1)(i), effective prior to October 1, 1992, required that complaints of discrimination be brought to the attention of the EEO Counselor within 30 days of the alleged discriminatory event, the effective date of an alleged discriminatory personnel action, or the date that the aggrieved person knew or reasonably should have known of the discriminatory event or personnel action. EEOC Regulation 29 C.F.R. §1614.105(a)(1) extended this time limit to 45 days for actions occurring on or after October 1, 1992. EEOC Regulation 29 C.F.R. §1614.105(a)(2) permits the time period to be extended under certain circumstances and 29 C.F.R. §1614.604(c) provides that the time limits in Part 1614 are subject to waiver, estoppel and equitable tolling. Although time limitations are subject to waiver, estoppel and equitable tolling, complainants are required to act with due diligence in pursuit of their claims. See Sapp v. U.S. Postal Service, EEOC Request No. 05950666 (May 31, 1996); Jenkins v. Department of the Army; EEOC Request No. 05940721 (January 26, 1996); O'Dell v. Department of Health and Human Services, EEOC Request No. 05901130 (December 27, 1990). The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the limitation period is triggered. See Ball v. U.S. Postal Service, EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period is not triggered until a complainant suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. The Commission has also held that the time requirements for initiating EEO counseling could be waived as to certain allegations within a complaint when the complainant alleged a continuing violation; that is, a series of related discriminatory acts, one of which fell within the time period for contacting an EEO Counselor. See McGivern v. U.S. Postal Service, EEOC Request No. 05901150 (December 28, 1990). Where a complainant alleges recurring incidents of discrimination, the agency is obligated to initiate an inquiry into whether any allegations untimely raised fall within the ambit of the continuing violation theory. See Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992). Relevant to the determination are whether the acts were recurring or were more in the nature of isolated employment decisions; whether an untimely discrete act had the degree of permanence which should have triggered an employee's awareness and duty to assert his or her rights; and, whether the same agency officials were involved. Woljan v. Environmental Protection Agency, EEOC Request No. 05950361 (October 5, 1995). In determining whether a continuing violation is present, it is important to consider whether appellant had prior knowledge or suspicion of discrimination. See Sabree v. United Brotherhood of Carpenters and Joiners Local No. 33, 921 F.2d 396 (1st Cir. 1990). It is necessary to distinguish between appellants who believed they had been subjected to discrimination, and therefore had the obligation to file promptly or lose their claims, versus appellants who are unable to appreciate that they are being discriminated against until they have lived through a series of acts and are thereby able to perceive the overall discriminatory pattern. See Hagen v. Department of Veterans Affairs, EEOC Request No. 05920709 (January 7, 1993). Regarding the issue of timeliness, appellant contends on appeal that there was "no EEO posting in her immediate work area." In its response to appellant's appeal, the agency asserts that all employees, including appellant, who were assigned to the Human Resources Department were aware of the names and telephone numbers of the EEO Counselors, that there were postings of EEO Counselors throughout the facility and employees were periodically briefed regarding EEO rights and time frames associated with the complaint process. It is well-settled that constructive knowledge of the time limit for contacting an EEO Counselor will be imputed to a complainant where the agency has fulfilled its statutory duty of posting notices informing employees of their rights and obligations under Title VII. Thompson v. Department of the Army, EEOC Request No. 05910474 (September 12, 1991). In order to impute constructive knowledge to the complainant, the agency, however, may not rely on a generalized affirmation that it posted EEO information; it must submit specific evidence that the poster contained notice of the applicable time limits. Pride v. U.S. Postal Service, EEOC Request No. 05930134 (August 19, 1993); Yashuk v. U.S. Postal Service, EEOC Request No. 05890382 (June 2, 1989). We are unable to affirm the agency's dismissal of allegations 4a-4f on the grounds of untimely EEO contact because the agency has not established that appellant was aware of the applicable limitation period for contacting an EEO Counselor. Without specific evidence that notices containing the 30 and/or 45-day time limit were conspicuously posted or specific evidence that appellant was otherwise aware of the time limit, the Commission cannot determine the timeliness of appellant's EEO contact. See York v. Department of Veterans Affairs, EEOC Request No. 05940575 (November 3, 1994) (agency's generalized statement that appellant was made aware of time frame without information that notice actually contained the time limit not considered sufficient proof of constructive notice); Santiago v. U.S. Postal Service, EEOC Request No. 05950272 (July 6, 1995) (agency official's affidavit that he maintained bulletin boards containing information on EEO rights and responsibilities, including time limits, found to constitute sufficient proof of constructive notice).
Background:
information in its framing of the allegation.<3>
Regarding allegation 4c, we find that appellant is merely providing more
information to elaborate the issue of her non-selection for the position.
The allegation therefore was properly defined.
Regarding allegation 4d, appellant asserts that the allegation should
be framed specifically as follows: on the bases of her race and age, she
was not given the opportunity to compete nor considered for the position
of Equal Employment Opportunity Specialist, GS-260-09 in January 1995.
Here again, appellant's objections to the framing of the allegation
center on the agency's choice of words. The allegation was therefore
properly defined.
With respect to allegation 4e, appellant contends that the allegation
should be defined specifically as follows: whether because of her sex,
race and age, she was improperly assigned to Code 114 in July 1995.
We see no error in the agency's definition of the issue.
Regarding allegation 4f, appellant contends that the allegation is not
complete and the following statement should be added: security denied her
due process by not processing the appeal of her suspension of access to
"DONCAF" so that she could be given a final decision and appeal through
the proper procedure. Because the due process issue is inextricably
intertwined and related to the suspension issue, we find no error in
the agency's definition of the allegation.
In summary, we find that the agency's definition of allegation 3b was
improper and should be redefined as set forth above. The agency's
definition of allegations 4a-4f was proper as specified herein.
Failure to Address Issues in Complaint
The Commission has held that failure to address an allegation in
a complaint is tantamount to dismissal by the agency. See Kapp
v. Department of the Navy, EEOC Request No. 05940662 (January 23, 1995).
Appellant contends on appeal that the agency failed to address a number
of issues raised in her complaint. Specifically, appellant identified
the unaddressed allegations as follows:
(a) whether a conflict of interest existed when EEO Counselor DM,
investigated her complaint;
(b) whether she was improperly assigned to Code 114;
(c) whether her retirement was involuntary and she was not provided an
exit interview;
(d) whether Person A was improperly assigned to the position of Employee
Development Specialist;
(e) whether appellant was not provided with training opportunities,
including EEO training;
(f) whether Person B was noncompetitively promoted in May 1995, an action
that appellant did not become aware of until December 1995;
(g) continuing violations, harassment/hostile work environment;
(h) ongoing harassment/continuing violations; and
(i) performing higher level duties and her refusal to sign her performance
evaluations.
Allegation (a)
EEOC Regulation 29 C.F.R.§1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that fails to state a
claim under §1614.103 or §1614.106(a) or states the same claim that is
pending before or has been decided by the agency or Commission. An agency
shall accept a complaint from any aggrieved employee or applicant for
employment who believes that he or she has been discriminated against
by that agency because of race, color, religion, sex, national origin,
age or disability. The Commission's federal sector case precedent has
long defined an "aggrieved employee" as one who suffers a present harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
We find that while allegation (a) was not addressed by the agency in
its final decision, the allegation fails to state a claim. Allegation
(a) is a claim of improper processing and, as such, does not state a
processable claim. See Kleinman v. U.S. Postal Service, EEOC Request
No. 05940579 (September 22, 1994); Story v. U.S. Postal Service, EEOC
Appeal No. 01965883, (March 13, 1997). When such an allegation is
raised, the agency should refer the complainant to the agency officials
responsible for the quality of complaint processing, and those individuals
should earnestly attempt to resolve dissatisfaction with the complaints
process as early as possible. EEO Management Directive 110 (4-8).
We note that EEO Counselor DM, appellant's EEO Counselor for the September
20, 1995 EEO contact, was one of the parties that appellant identified
in her complaint as having been provided with EEO training and having
been given a temporary promotion to Employee Relations Specialist GS-9.
We find, however, that appellant has not demonstrated how she was harmed
by being counseled by EEO Counselor DM. Furthermore, appellant has not
stated that she requested or was denied a change of Counselor.
Allegations (b) and (h)
Allegation (b) states the same claim as allegation 4e and is therefore
properly dismissed pursuant to 29 C.F.R. §1614.107(a). Both allegations
pertain to appellant's reassignment from one Code to another in July 1995.
Although 29 C.F.R. §1614.107(a) generally applies to a situation where an
individual files more than one complaint containing the same allegations,
we find it similarly applicable where a complaint contains the same
allegations. See Cheh v. Nuclear Regulatory Commission, EEOC Appeal
No. 01952389 (September 14, 1995). Because allegation (h) is the same
allegation as allegation (g), it is also properly dismissed.
Allegations (c), (d), (e), (f), (g), and (i)
In the narrative statement appended to her complaint, appellant
alleged that she was forced to retire because of the agency's alleged
discriminatory actions (allegation c); that she was not given an exit
interview (allegation c); that in 1993 or 1994, she was not provided
EEO training (allegation e); that she was subjected to harassment and a
hostile work environment (allegation g); and that since 1989, she was
performing work at a GS-9 and GS-11 grade levels although she was a
GS-7 (allegation i). Accordingly, the agency's failure to address these
allegations in its final decisions was in error. Accordingly, we hereby
remand allegations (c) through (g), and (i) for further processing.
Untimely EEO Contact
EEOC Regulation 29 C.F.R. §1613.214(a)(1)(i), effective prior to
October 1, 1992, required that complaints of discrimination be brought
to the attention of the EEO Counselor within 30 days of the alleged
discriminatory event, the effective date of an alleged discriminatory
personnel action, or the date that the aggrieved person knew or reasonably
should have known of the discriminatory event or personnel action.
EEOC Regulation 29 C.F.R. §1614.105(a)(1) extended this time limit to
45 days for actions occurring on or after October 1, 1992.
EEOC Regulation 29 C.F.R. §1614.105(a)(2) permits the time period to be
extended under certain circumstances and 29 C.F.R. §1614.604(c) provides
that the time limits in Part 1614 are subject to waiver, estoppel and
equitable tolling. Although time limitations are subject to waiver,
estoppel and equitable tolling, complainants are required to act with due
diligence in pursuit of their claims. See Sapp v. U.S. Postal Service,
EEOC Request No. 05950666 (May 31, 1996); Jenkins v. Department of the
Army; EEOC Request No. 05940721 (January 26, 1996); O'Dell v. Department
of Health and Human Services, EEOC Request No. 05901130 (December 27,
1990).
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the limitation period
is triggered. See Ball v. U.S. Postal Service, EEOC Request No. 05880247
(July 6, 1988). Thus, the limitations period is not triggered until
a complainant suspects discrimination, but before all the facts that
support a charge of discrimination have become apparent.
The Commission has also held that the time requirements for initiating EEO
counseling could be waived as to certain allegations within a complaint
when the complainant alleged a continuing violation; that is, a series
of related discriminatory acts, one of which fell within the time period
for contacting an EEO Counselor. See McGivern v. U.S. Postal Service,
EEOC Request No. 05901150 (December 28, 1990). Where a complainant alleges
recurring incidents of discrimination, the agency is obligated to initiate
an inquiry into whether any allegations untimely raised fall within the
ambit of the continuing violation theory. See Williams v. Department of
Defense, EEOC Request No. 05920506 (August 25, 1992). Relevant to the
determination are whether the acts were recurring or were more in the
nature of isolated employment decisions; whether an untimely discrete act
had the degree of permanence which should have triggered an employee's
awareness and duty to assert his or her rights; and, whether the same
agency officials were involved. Woljan v. Environmental Protection
Agency, EEOC Request No. 05950361 (October 5, 1995).
In determining whether a continuing violation is present, it is important
to consider whether appellant had prior knowledge or suspicion of
discrimination. See Sabree v. United Brotherhood of Carpenters and
Joiners Local No. 33, 921 F.2d 396 (1st Cir. 1990). It is necessary to
distinguish between appellants who believed they had been subjected to
discrimination, and therefore had the obligation to file promptly or lose
their claims, versus appellants who are unable to appreciate that they
are being discriminated against until they have lived through a series of
acts and are thereby able to perceive the overall discriminatory pattern.
See Hagen v. Department of Veterans Affairs, EEOC Request No. 05920709
(January 7, 1993).
Regarding the issue of timeliness, appellant contends on appeal that
there was "no EEO posting in her immediate work area." In its response
to appellant's appeal, the agency asserts that all employees, including
appellant, who were assigned to the Human Resources Department were aware
of the names and telephone numbers of the EEO Counselors, that there
were postings of EEO Counselors throughout the facility and employees
were periodically briefed regarding EEO rights and time frames associated
with the complaint process.
It is well-settled that constructive knowledge of the time limit for
contacting an EEO Counselor will be imputed to a complainant where the
agency has fulfilled its statutory duty of posting notices informing
employees of their rights and obligations under Title VII. Thompson
v. Department of the Army, EEOC Request No. 05910474 (September 12, 1991).
In order to impute constructive knowledge to the complainant, the agency,
however, may not rely on a generalized affirmation that it posted EEO
information; it must submit specific evidence that the poster contained
notice of the applicable time limits. Pride v. U.S. Postal Service, EEOC
Request No. 05930134 (August 19, 1993); Yashuk v. U.S. Postal Service,
EEOC Request No. 05890382 (June 2, 1989).
We are unable to affirm the agency's dismissal of allegations 4a-4f
on the grounds of untimely EEO contact because the agency has not
established that appellant was aware of the applicable limitation period
for contacting an EEO Counselor. Without specific evidence that notices
containing the 30 and/or 45-day time limit were conspicuously posted or
specific evidence that appellant was otherwise aware of the time limit,
the Commission cannot determine the timeliness of appellant's EEO contact.
See York v. Department of Veterans Affairs, EEOC Request No. 05940575
(November 3, 1994) (agency's generalized statement that appellant was made
aware of time frame without information that notice actually contained
the time limit not considered sufficient proof of constructive notice);
Santiago v. U.S. Postal Service, EEOC Request No. 05950272 (July 6,
1995) (agency official's affidavit that he maintained bulletin boards
containing information on EEO rights and responsibilities, including time
limits, found to constitute sufficient proof of constructive notice).
The record contains no evidence that appellant had actual or constructive
notice of the limitation period. The agency's generalized assertions
that it displayed posters of the EEO process and that appellant knew of
the applicable time limits because she worked in Human Resources do not
provide a sufficient basis upon which the Commission can conclude that
appellant was aware of the time limit for Counselor contact.
Regarding the contacts made by appellant prior to September 20, 1995,
appellant alleged in her complaint that she first contacted EEO Counselor
NN in June or July 1994, regarding allegation 4b and a promotion.
Appellant also alleged that she contacted the EEO Office again around
September 20-25, 1994, after she learned about Person A's promotion.
She alleges that she spoke to EEO Counselor DB.
The agency's Report reveals that appellant stated that she spoke to EEO
Specialist SJ in 1989, regarding allegation 4a. In its Report, the agency
stated that there were no records indicating that appellant requested
counseling after this meeting with SJ. The Report also indicates that NN
remembered discussing the completion of the Form 398 and told her that
the incidents involved Privacy Act violations and suggested that she
contact the agency's legal office. No other contacts are referenced
in the Report. The Report also indicates that if discrimination was
raised during appellant's contacts, appellant would have been referred
for counseling.
In responding to the Report, appellant asserts on appeal that when she
met with NN in July 1994, he never gave her any guidance regarding the
EEO process and did not refer her to the legal office. Appellant further
contends that during her 14 years working for the agency, she was never
made aware of the EEO process and that despite several complaints made
to her supervisor, she was never informed that she should contact the EEO
office. Appellant asserts that she contacted the EEO office on September
22, 1994, and made an appointment with DB. At her appointment, she
discussed Form 398, violation of her privacy and her not being selected
for promotions. Appellant further asserts that after meeting with DB,
DB telephoned her and told her that she had no basis for an EEO complaint.
Appellant also asserts that she contacted EEO Counselor CW prior to 1995,
regarding an accusation made against her by Person B but she was not
offered any guidance.
The information provided in the agency's unsigned Report does not
sufficiently address the contact or timeliness issues. For example,
while the Report states that there are no records or evidence that
appellant requested counseling after meeting with EEO Counselor SJ,
the Report does not indicate how that conclusion was obtained. It is
also not clear whether appellant in fact met with SJ. The agency also
indicated in the Report that appellant could not have met with DB prior to
January 1995, but provided no independent proof to support its assertion
nor furnished any proof regarding the contacts with DB.
Similarly, the Commission notes that while the agency states in its
appeal brief that NN was not an EEO Counselor, there is also no evidence
to support the assertion.<4> Moreover, there is no statement from NN
addressing specifically his contacts with appellant, what was discussed
and what actions, if any, he advised appellant to take. Other than the
agency's assertions in the Investigative Report and in its brief that
allegations which do not fall within the discrimination statutes are
referred elsewhere, there is no proof which would establish the office's
policies and record keeping procedures in these matters.
Overall, the inquiry the agency undertook on remand before dismissing
the allegations for untimeliness was insufficient. Accordingly, for the
second time, we cannot make a reasoned determination as to the timeliness
of appellant's EEO contact. In addition, we note that the agency's final
Legal Analysis:
the Commission concluded that the record was insufficient to determine
the timeliness of appellant's EEO Counselor contact. The Commission
noted that although appellant alleged in her complaint and on appeal
that she contacted EEO officials in June and September 1994, the agency
failed to address these contentions in FAD-1. The Commission further
noted that the agency failed to address appellant's claim that the
allegations were interrelated as a pattern of harassment and constituted a
continuing violation.
Final Decision:
Accordingly, the agency was ordered to conduct an investigation on the issue of timeliness of EEO contact. Specifically, the agency was directed to investigate which officials were contacted, on what dates and what was discussed and to conduct an analysis of appellant's allegation of a continuing violation. On July 28, 1997, the agency issued a new final decision (FAD-2). The agency framed the accepted allegations as whether appellant was discriminated against when: a. on the bases of race (White), sex (female) and age (August 18, 1946), she did not receive her performance rating for the period ending January 31, 1995, until August 22, 1995; 3b. on the bases of sex, her request for continuation of pay, filed on September 6, 1995, was denied. The agency framed the dismissed allegations as whether appellant was discriminated against when: 4a. on the bases of race and sex, she was denied the opportunity to compete for the position of Employee Relations Specialist, GS-230-09 in September 1989; 4b. on the bases of age and sex, she was directed to complete a DD Form 398 in June 1994; 4c. on the bases of race, she was not selected for the position of Employee Relations Specialist, GS-230-09 in October 1994; 4d. on the bases of race and age, she was not given the opportunity to be promoted to the position of Equal Opportunity Employment Specialist, GS-260-09 in January 1995; 4e. on the bases of sex, race, and age, she was reassigned from Code 112 to Code 114 in July 1995; and 4f. on the bases of race and sex, her access to classified information and to the Controlled Industrial Area was suspended on July 26, 1995.<1> In dismissing allegations 4a-4f, the agency noted that appellant did not initiate contact with an EEO Counselor until September 20, 1995. The agency stated that although appellant alleged that she initiated Counselor contact in June and September 1994, there were no records of any such contacts. The agency also stated that its February 19, 1997 Report of Supplemental Investigation (Report) indicated that EEO contacts prior to September 20, 1995 were informal and did not involve allegations of discrimination. The agency further stated that appellant was aware of the time limits for timely contact and failed to provide justification to extend the time limit. The agency also stated that the dismissed allegations did not constitute a continuing violation because the allegations were distinct and unrelated and occurred over a number of years. Definition of the Issues of the Complaint On appeal, appellant asserts that allegations 3b and 4a through 4f were not properly defined.<2> Appellant does not dispute allegation a. Appellant indicates that allegation 3b should be specifically framed as follows: her request for continuation of pay, filed on September 6, 1995, was not properly processed and she was not advised of proper procedure, nor informed that she could not be placed on trauma leave. A review of the complaint reflects that appellant alleged that she filed for continuation of pay and her request was not properly processed. Appellant, it appears, is not challenging the denial of her continuation of pay but is instead challenging the processing of her continuation of pay as discriminatory. Accordingly, we redefine allegation 3b as follows: whether because of appellant's sex, her request for continuation of pay made on or about September 6, 1995, was improperly processed. Appellant also contends that allegation 4a should be worded specifically as follows: her application was not rated so that she could be considered/compete for the position of Employee Relations Specialist GS-230-5/7/9/11 in May 1989. We find that appellant's dissatisfaction with the framing of the allegation centers on the agency's choice of words. The action that appellant is challenging in the allegation is that she was not offered or selected for the position because the agency failed to rate her application for the position. The agency has therefore properly defined the allegation. However, the allegation should be revised to include all the grade levels for the disputed position. A review of appellant's concerns regarding the framing of allegation 4b reveals that appellant wants the agency to include background and explanatory information regarding the completion of the Form 398 in the allegation. We find no error in the agency's omission of background information in its framing of the allegation.<3> Regarding allegation 4c, we find that appellant is merely providing more information to elaborate the issue of her non-selection for the position. The allegation therefore was properly defined. Regarding allegation 4d, appellant asserts that the allegation should be framed specifically as follows: on the bases of her race and age, she was not given the opportunity to compete nor considered for the position of Equal Employment Opportunity Specialist, GS-260-09 in January 1995. Here again, appellant's objections to the framing of the allegation center on the agency's choice of words. The allegation was therefore properly defined. With respect to allegation 4e, appellant contends that the allegation should be defined specifically as follows: whether because of her sex, race and age, she was improperly assigned to Code 114 in July 1995. We see no error in the agency's definition of the issue. Regarding allegation 4f, appellant contends that the allegation is not complete and the following statement should be added: security denied her due process by not processing the appeal of her suspension of access to "DONCAF" so that she could be given a final decision and appeal through the proper procedure. Because the due process issue is inextricably intertwined and related to the suspension issue, we find no error in the agency's definition of the allegation. In summary, we find that the agency's definition of allegation 3b was improper and should be redefined as set forth above. The agency's definition of allegations 4a-4f was proper as specified herein. Failure to Address Issues in Complaint The Commission has held that failure to address an allegation in a complaint is tantamount to dismissal by the agency. See Kapp v. Department of the Navy, EEOC Request No. 05940662 (January 23, 1995). Appellant contends on appeal that the agency failed to address a number of issues raised in her complaint. Specifically, appellant identified the unaddressed allegations as follows: (a) whether a conflict of interest existed when EEO Counselor DM, investigated her complaint; (b) whether she was improperly assigned to Code 114; (c) whether her retirement was involuntary and she was not provided an exit interview; (d) whether Person A was improperly assigned to the position of Employee Development Specialist; (e) whether appellant was not provided with training opportunities, including EEO training; (f) whether Person B was noncompetitively promoted in May 1995, an action that appellant did not become aware of until December 1995; (g) continuing violations, harassment/hostile work environment; (h) ongoing harassment/continuing violations; and (i) performing higher level duties and her refusal to sign her performance evaluations. Allegation (a) EEOC Regulation 29 C.F.R.§1614.107(a) provides that the agency shall dismiss a complaint or a portion of a complaint that fails to state a claim under §1614.103 or §1614.106(a) or states the same claim that is pending before or has been decided by the agency or Commission. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disability. The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). We find that while allegation (a) was not addressed by the agency in its final decision, the allegation fails to state a claim. Allegation (a) is a claim of improper processing and, as such, does not state a processable claim. See Kleinman v. U.S. Postal Service, EEOC Request No. 05940579 (September 22, 1994); Story v. U.S. Postal Service, EEOC Appeal No. 01965883, (March 13, 1997). When such an allegation is raised, the agency should refer the complainant to the agency officials responsible for the quality of complaint processing, and those individuals should earnestly attempt to resolve dissatisfaction with the complaints process as early as possible. EEO Management Directive 110 (4-8). We note that EEO Counselor DM, appellant's EEO Counselor for the September 20, 1995 EEO contact, was one of the parties that appellant identified in her complaint as having been provided with EEO training and having been given a temporary promotion to Employee Relations Specialist GS-9. We find, however, that appellant has not demonstrated how she was harmed by being counseled by EEO Counselor DM. Furthermore, appellant has not stated that she requested or was denied a change of Counselor. Allegations (b) and (h) Allegation (b) states the same claim as allegation 4e and is therefore properly dismissed pursuant to 29 C.F.R. §1614.107(a). Both allegations pertain to appellant's reassignment from one Code to another in July 1995. Although 29 C.F.R. §1614.107(a) generally applies to a situation where an individual files more than one complaint containing the same allegations, we find it similarly applicable where a complaint contains the same allegations. See Cheh v. Nuclear Regulatory Commission, EEOC Appeal No. 01952389 (September 14, 1995). Because allegation (h) is the same allegation as allegation (g), it is also properly dismissed. Allegations (c), (d), (e), (f), (g), and (i) In the narrative statement appended to her complaint, appellant alleged that she was forced to retire because of the agency's alleged discriminatory actions (allegation c); that she was not given an exit interview (allegation c); that in 1993 or 1994, she was not provided EEO training (allegation e); that she was subjected to harassment and a hostile work environment (allegation g); and that since 1989, she was performing work at a GS-9 and GS-11 grade levels although she was a GS-7 (allegation i). Accordingly, the agency's failure to address these allegations in its final decisions was in error. Accordingly, we hereby remand allegations (c) through (g), and (i) for further processing. Untimely EEO Contact EEOC Regulation 29 C.F.R. §1613.214(a)(1)(i), effective prior to October 1, 1992, required that complaints of discrimination be brought to the attention of the EEO Counselor within 30 days of the alleged discriminatory event, the effective date of an alleged discriminatory personnel action, or the date that the aggrieved person knew or reasonably should have known of the discriminatory event or personnel action. EEOC Regulation 29 C.F.R. §1614.105(a)(1) extended this time limit to 45 days for actions occurring on or after October 1, 1992. EEOC Regulation 29 C.F.R. §1614.105(a)(2) permits the time period to be extended under certain circumstances and 29 C.F.R. §1614.604(c) provides that the time limits in Part 1614 are subject to waiver, estoppel and equitable tolling. Although time limitations are subject to waiver, estoppel and equitable tolling, complainants are required to act with due diligence in pursuit of their claims. See Sapp v. U.S. Postal Service, EEOC Request No. 05950666 (May 31, 1996); Jenkins v. Department of the Army; EEOC Request No. 05940721 (January 26, 1996); O'Dell v. Department of Health and Human Services, EEOC Request No. 05901130 (December 27, 1990). The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the limitation period is triggered. See Ball v. U.S. Postal Service, EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period is not triggered until a complainant suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. The Commission has also held that the time requirements for initiating EEO counseling could be waived as to certain allegations within a complaint when the complainant alleged a continuing violation; that is, a series of related discriminatory acts, one of which fell within the time period for contacting an EEO Counselor. See McGivern v. U.S. Postal Service, EEOC Request No. 05901150 (December 28, 1990). Where a complainant alleges recurring incidents of discrimination, the agency is obligated to initiate an inquiry into whether any allegations untimely raised fall within the ambit of the continuing violation theory. See Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992). Relevant to the determination are whether the acts were recurring or were more in the nature of isolated employment decisions; whether an untimely discrete act had the degree of permanence which should have triggered an employee's awareness and duty to assert his or her rights; and, whether the same agency officials were involved. Woljan v. Environmental Protection Agency, EEOC Request No. 05950361 (October 5, 1995). In determining whether a continuing violation is present, it is important to consider whether appellant had prior knowledge or suspicion of discrimination. See Sabree v. United Brotherhood of Carpenters and Joiners Local No. 33, 921 F.2d 396 (1st Cir. 1990). It is necessary to distinguish between appellants who believed they had been subjected to discrimination, and therefore had the obligation to file promptly or lose their claims, versus appellants who are unable to appreciate that they are being discriminated against until they have lived through a series of acts and are thereby able to perceive the overall discriminatory pattern. See Hagen v. Department of Veterans Affairs, EEOC Request No. 05920709 (January 7, 1993). Regarding the issue of timeliness, appellant contends on appeal that there was "no EEO posting in her immediate work area." In its response to appellant's appeal, the agency asserts that all employees, including appellant, who were assigned to the Human Resources Department were aware of the names and telephone numbers of the EEO Counselors, that there were postings of EEO Counselors throughout the facility and employees were periodically briefed regarding EEO rights and time frames associated with the complaint process. It is well-settled that constructive knowledge of the time limit for contacting an EEO Counselor will be imputed to a complainant where the agency has fulfilled its statutory duty of posting notices informing employees of their rights and obligations under Title VII. Thompson v. Department of the Army, EEOC Request No. 05910474 (September 12, 1991). In order to impute constructive knowledge to the complainant, the agency, however, may not rely on a generalized affirmation that it posted EEO information; it must submit specific evidence that the poster contained notice of the applicable time limits. Pride v. U.S. Postal Service, EEOC Request No. 05930134 (August 19, 1993); Yashuk v. U.S. Postal Service, EEOC Request No. 05890382 (June 2, 1989). We are unable to affirm the agency's dismissal of allegations 4a-4f on the grounds of untimely EEO contact because the agency has not established that appellant was aware of the applicable limitation period for contacting an EEO Counselor. Without specific evidence that notices containing the 30 and/or 45-day time limit were conspicuously posted or specific evidence that appellant was otherwise aware of the time limit, the Commission cannot determine the timeliness of appellant's EEO contact. See York v. Department of Veterans Affairs, EEOC Request No. 05940575 (November 3, 1994) (agency's generalized statement that appellant was made aware of time frame without information that notice actually contained the time limit not considered sufficient proof of constructive notice); Santiago v. U.S. Postal Service, EEOC Request No. 05950272 (July 6, 1995) (agency official's affidavit that he maintained bulletin boards containing information on EEO rights and responsibilities, including time limits, found to constitute sufficient proof of constructive notice). The record contains no evidence that appellant had actual or constructive notice of the limitation period. The agency's generalized assertions that it displayed posters of the EEO process and that appellant knew of the applicable time limits because she worked in Human Resources do not provide a sufficient basis upon which the Commission can conclude that appellant was aware of the time limit for Counselor contact. Regarding the contacts made by appellant prior to September 20, 1995, appellant alleged in her complaint that she first contacted EEO Counselor NN in June or July 1994, regarding allegation 4b and a promotion. Appellant also alleged that she contacted the EEO Office again around September 20-25, 1994, after she learned about Person A's promotion. She alleges that she spoke to EEO Counselor DB. The agency's Report reveals that appellant stated that she spoke to EEO Specialist SJ in 1989, regarding allegation 4a. In its Report, the agency stated that there were no records indicating that appellant requested counseling after this meeting with SJ. The Report also indicates that NN remembered discussing the completion of the Form 398 and told her that the incidents involved Privacy Act violations and suggested that she contact the agency's legal office. No other contacts are referenced in the Report. The Report also indicates that if discrimination was raised during appellant's contacts, appellant would have been referred for counseling. In responding to the Report, appellant asserts on appeal that when she met with NN in July 1994, he never gave her any guidance regarding the EEO process and did not refer her to the legal office. Appellant further contends that during her 14 years working for the agency, she was never made aware of the EEO process and that despite several complaints made to her supervisor, she was never informed that she should contact the EEO office. Appellant asserts that she contacted the EEO office on September 22, 1994, and made an appointment with DB. At her appointment, she discussed Form 398, violation of her privacy and her not being selected for promotions. Appellant further asserts that after meeting with DB, DB telephoned her and told her that she had no basis for an EEO complaint. Appellant also asserts that she contacted EEO Counselor CW prior to 1995, regarding an accusation made against her by Person B but she was not offered any guidance. The information provided in the agency's unsigned Report does not sufficiently address the contact or timeliness issues. For example, while the Report states that there are no records or evidence that appellant requested counseling after meeting with EEO Counselor SJ, the Report does not indicate how that conclusion was obtained. It is also not clear whether appellant in fact met with SJ. The agency also indicated in the Report that appellant could not have met with DB prior to January 1995, but provided no independent proof to support its assertion nor furnished any proof regarding the contacts with DB. Similarly, the Commission notes that while the agency states in its appeal brief that NN was not an EEO Counselor, there is also no evidence to support the assertion.<4> Moreover, there is no statement from NN addressing specifically his contacts with appellant, what was discussed and what actions, if any, he advised appellant to take. Other than the agency's assertions in the Investigative Report and in its brief that allegations which do not fall within the discrimination statutes are referred elsewhere, there is no proof which would establish the office's policies and record keeping procedures in these matters. Overall, the inquiry the agency undertook on remand before dismissing the allegations for untimeliness was insufficient. Accordingly, for the second time, we cannot make a reasoned determination as to the timeliness of appellant's EEO contact. In addition, we note that the agency's final decision is also lacking in its completeness. Nowhere, for example, does the agency address when appellant may have had a reasonable suspicion of discrimination as to any of the alleged discriminatory actions or the appellant's intent to pursue the EEO process, issues relevant to a determination of timeliness in the present matter. Nor does the agency provide an adequate analysis of the continuing violation theory. The Commission cannot make findings based on the agency's unsupported and conclusive assertions. The Commission has consistently held that where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Williams v. Department. of Defense, EEOC Request No. 05920506 (August 25, 1992). Accordingly, we must again remand this matter. Consistent with our discussion herein, the agency's dismissal of allegations 4a-4f is VACATED. | Betty J. Olds, )
Appellant, )
) Appeal No. 01976592
v. ) Agency No. 96-00191-001
)
John H. Dalton, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
On August 30, 1997, appellant filed a timely appeal with this Commission
from a July 28, 1997 final agency decision, received by her on July
31, 1997. The final agency decision accepted two allegations of the
complaint for investigation and dismissed six allegations for failure
to contact an EEO Counselor in a timely manner.
As an initial matter, we note that on December 12, 1995, the agency issued
a final decision (FAD-1) dismissing the subject allegations for untimely
Counselor contact. In EEOC Appeal No. 01962101 (December 5, 1996),
the Commission concluded that the record was insufficient to determine
the timeliness of appellant's EEO Counselor contact. The Commission
noted that although appellant alleged in her complaint and on appeal
that she contacted EEO officials in June and September 1994, the agency
failed to address these contentions in FAD-1. The Commission further
noted that the agency failed to address appellant's claim that the
allegations were interrelated as a pattern of harassment and constituted a
continuing violation. Accordingly, the agency was ordered to conduct an
investigation on the issue of timeliness of EEO contact. Specifically,
the agency was directed to investigate which officials were contacted,
on what dates and what was discussed and to conduct an analysis of
appellant's allegation of a continuing violation.
On July 28, 1997, the agency issued a new final decision (FAD-2). The
agency framed the accepted allegations as whether appellant was
discriminated against when:
a. on the bases of race (White), sex (female) and age (August 18, 1946),
she did not receive her performance rating for the period ending January
31, 1995, until August 22, 1995;
3b. on the bases of sex, her request for continuation of pay, filed on
September 6, 1995, was denied.
The agency framed the dismissed allegations as whether appellant was
discriminated against when:
4a. on the bases of race and sex, she was denied the opportunity to
compete for the position of Employee Relations Specialist, GS-230-09 in
September 1989;
4b. on the bases of age and sex, she was directed to complete a DD Form
398 in June 1994;
4c. on the bases of race, she was not selected for the position of
Employee Relations Specialist, GS-230-09 in October 1994;
4d. on the bases of race and age, she was not given the opportunity to
be promoted to the position of Equal Opportunity Employment Specialist,
GS-260-09 in January 1995;
4e. on the bases of sex, race, and age, she was reassigned from Code
112 to Code 114 in July 1995; and
4f. on the bases of race and sex, her access to classified information
and to the Controlled Industrial Area was suspended on July 26, 1995.<1>
In dismissing allegations 4a-4f, the agency noted that appellant did
not initiate contact with an EEO Counselor until September 20, 1995.
The agency stated that although appellant alleged that she initiated
Counselor contact in June and September 1994, there were no records
of any such contacts. The agency also stated that its February 19,
1997 Report of Supplemental Investigation (Report) indicated that EEO
contacts prior to September 20, 1995 were informal and did not involve
allegations of discrimination. The agency further stated that appellant
was aware of the time limits for timely contact and failed to provide
justification to extend the time limit. The agency also stated that the
dismissed allegations did not constitute a continuing violation because
the allegations were distinct and unrelated and occurred over a number
of years.
Definition of the Issues of the Complaint
On appeal, appellant asserts that allegations 3b and 4a through 4f were
not properly defined.<2> Appellant does not dispute allegation a.
Appellant indicates that allegation 3b should be specifically framed
as follows: her request for continuation of pay, filed on September
6, 1995, was not properly processed and she was not advised of proper
procedure, nor informed that she could not be placed on trauma leave.
A review of the complaint reflects that appellant alleged that she filed
for continuation of pay and her request was not properly processed.
Appellant, it appears, is not challenging the denial of her continuation
of pay but is instead challenging the processing of her continuation of
pay as discriminatory. Accordingly, we redefine allegation 3b as follows:
whether because of appellant's sex, her request for continuation of pay
made on or about September 6, 1995, was improperly processed.
Appellant also contends that allegation 4a should be worded specifically
as follows: her application was not rated so that she could be
considered/compete for the position of Employee Relations Specialist
GS-230-5/7/9/11 in May 1989. We find that appellant's dissatisfaction
with the framing of the allegation centers on the agency's choice
of words. The action that appellant is challenging in the allegation
is that she was not offered or selected for the position because the
agency failed to rate her application for the position. The agency has
therefore properly defined the allegation. However, the allegation should
be revised to include all the grade levels for the disputed position.
A review of appellant's concerns regarding the framing of allegation
4b reveals that appellant wants the agency to include background and
explanatory information regarding the completion of the Form 398 in
the allegation. We find no error in the agency's omission of background
information in its framing of the allegation.<3>
Regarding allegation 4c, we find that appellant is merely providing more
information to elaborate the issue of her non-selection for the position.
The allegation therefore was properly defined.
Regarding allegation 4d, appellant asserts that the allegation should
be framed specifically as follows: on the bases of her race and age, she
was not given the opportunity to compete nor considered for the position
of Equal Employment Opportunity Specialist, GS-260-09 in January 1995.
Here again, appellant's objections to the framing of the allegation
center on the agency's choice of words. The allegation was therefore
properly defined.
With respect to allegation 4e, appellant contends that the allegation
should be defined specifically as follows: whether because of her sex,
race and age, she was improperly assigned to Code 114 in July 1995.
We see no error in the agency's definition of the issue.
Regarding allegation 4f, appellant contends that the allegation is not
complete and the following statement should be added: security denied her
due process by not processing the appeal of her suspension of access to
"DONCAF" so that she could be given a final decision and appeal through
the proper procedure. Because the due process issue is inextricably
intertwined and related to the suspension issue, we find no error in
the agency's definition of the allegation.
In summary, we find that the agency's definition of allegation 3b was
improper and should be redefined as set forth above. The agency's
definition of allegations 4a-4f was proper as specified herein.
Failure to Address Issues in Complaint
The Commission has held that failure to address an allegation in
a complaint is tantamount to dismissal by the agency. See Kapp
v. Department of the Navy, EEOC Request No. 05940662 (January 23, 1995).
Appellant contends on appeal that the agency failed to address a number
of issues raised in her complaint. Specifically, appellant identified
the unaddressed allegations as follows:
(a) whether a conflict of interest existed when EEO Counselor DM,
investigated her complaint;
(b) whether she was improperly assigned to Code 114;
(c) whether her retirement was involuntary and she was not provided an
exit interview;
(d) whether Person A was improperly assigned to the position of Employee
Development Specialist;
(e) whether appellant was not provided with training opportunities,
including EEO training;
(f) whether Person B was noncompetitively promoted in May 1995, an action
that appellant did not become aware of until December 1995;
(g) continuing violations, harassment/hostile work environment;
(h) ongoing harassment/continuing violations; and
(i) performing higher level duties and her refusal to sign her performance
evaluations.
Allegation (a)
EEOC Regulation 29 C.F.R.§1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that fails to state a
claim under §1614.103 or §1614.106(a) or states the same claim that is
pending before or has been decided by the agency or Commission. An agency
shall accept a complaint from any aggrieved employee or applicant for
employment who believes that he or she has been discriminated against
by that agency because of race, color, religion, sex, national origin,
age or disability. The Commission's federal sector case precedent has
long defined an "aggrieved employee" as one who suffers a present harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
We find that while allegation (a) was not addressed by the agency in
its final decision, the allegation fails to state a claim. Allegation
(a) is a claim of improper processing and, as such, does not state a
processable claim. See Kleinman v. U.S. Postal Service, EEOC Request
No. 05940579 (September 22, 1994); Story v. U.S. Postal Service, EEOC
Appeal No. 01965883, (March 13, 1997). When such an allegation is
raised, the agency should refer the complainant to the agency officials
responsible for the quality of complaint processing, and those individuals
should earnestly attempt to resolve dissatisfaction with the complaints
process as early as possible. EEO Management Directive 110 (4-8).
We note that EEO Counselor DM, appellant's EEO Counselor for the September
20, 1995 EEO contact, was one of the parties that appellant identified
in her complaint as having been provided with EEO training and having
been given a temporary promotion to Employee Relations Specialist GS-9.
We find, however, that appellant has not demonstrated how she was harmed
by being counseled by EEO Counselor DM. Furthermore, appellant has not
stated that she requested or was denied a change of Counselor.
Allegations (b) and (h)
Allegation (b) states the same claim as allegation 4e and is therefore
properly dismissed pursuant to 29 C.F.R. §1614.107(a). Both allegations
pertain to appellant's reassignment from one Code to another in July 1995.
Although 29 C.F.R. §1614.107(a) generally applies to a situation where an
individual files more than one complaint containing the same allegations,
we find it similarly applicable where a complaint contains the same
allegations. See Cheh v. Nuclear Regulatory Commission, EEOC Appeal
No. 01952389 (September 14, 1995). Because allegation (h) is the same
allegation as allegation (g), it is also properly dismissed.
Allegations (c), (d), (e), (f), (g), and (i)
In the narrative statement appended to her complaint, appellant
alleged that she was forced to retire because of the agency's alleged
discriminatory actions (allegation c); that she was not given an exit
interview (allegation c); that in 1993 or 1994, she was not provided
EEO training (allegation e); that she was subjected to harassment and a
hostile work environment (allegation g); and that since 1989, she was
performing work at a GS-9 and GS-11 grade levels although she was a
GS-7 (allegation i). Accordingly, the agency's failure to address these
allegations in its final decisions was in error. Accordingly, we hereby
remand allegations (c) through (g), and (i) for further processing.
Untimely EEO Contact
EEOC Regulation 29 C.F.R. §1613.214(a)(1)(i), effective prior to
October 1, 1992, required that complaints of discrimination be brought
to the attention of the EEO Counselor within 30 days of the alleged
discriminatory event, the effective date of an alleged discriminatory
personnel action, or the date that the aggrieved person knew or reasonably
should have known of the discriminatory event or personnel action.
EEOC Regulation 29 C.F.R. §1614.105(a)(1) extended this time limit to
45 days for actions occurring on or after October 1, 1992.
EEOC Regulation 29 C.F.R. §1614.105(a)(2) permits the time period to be
extended under certain circumstances and 29 C.F.R. §1614.604(c) provides
that the time limits in Part 1614 are subject to waiver, estoppel and
equitable tolling. Although time limitations are subject to waiver,
estoppel and equitable tolling, complainants are required to act with due
diligence in pursuit of their claims. See Sapp v. U.S. Postal Service,
EEOC Request No. 05950666 (May 31, 1996); Jenkins v. Department of the
Army; EEOC Request No. 05940721 (January 26, 1996); O'Dell v. Department
of Health and Human Services, EEOC Request No. 05901130 (December 27,
1990).
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the limitation period
is triggered. See Ball v. U.S. Postal Service, EEOC Request No. 05880247
(July 6, 1988). Thus, the limitations period is not triggered until
a complainant suspects discrimination, but before all the facts that
support a charge of discrimination have become apparent.
The Commission has also held that the time requirements for initiating EEO
counseling could be waived as to certain allegations within a complaint
when the complainant alleged a continuing violation; that is, a series
of related discriminatory acts, one of which fell within the time period
for contacting an EEO Counselor. See McGivern v. U.S. Postal Service,
EEOC Request No. 05901150 (December 28, 1990). Where a complainant alleges
recurring incidents of discrimination, the agency is obligated to initiate
an inquiry into whether any allegations untimely raised fall within the
ambit of the continuing violation theory. See Williams v. Department of
Defense, EEOC Request No. 05920506 (August 25, 1992). Relevant to the
determination are whether the acts were recurring or were more in the
nature of isolated employment decisions; whether an untimely discrete act
had the degree of permanence which should have triggered an employee's
awareness and duty to assert his or her rights; and, whether the same
agency officials were involved. Woljan v. Environmental Protection
Agency, EEOC Request No. 05950361 (October 5, 1995).
In determining whether a continuing violation is present, it is important
to consider whether appellant had prior knowledge or suspicion of
discrimination. See Sabree v. United Brotherhood of Carpenters and
Joiners Local No. 33, 921 F.2d 396 (1st Cir. 1990). It is necessary to
distinguish between appellants who believed they had been subjected to
discrimination, and therefore had the obligation to file promptly or lose
their claims, versus appellants who are unable to appreciate that they
are being discriminated against until they have lived through a series of
acts and are thereby able to perceive the overall discriminatory pattern.
See Hagen v. Department of Veterans Affairs, EEOC Request No. 05920709
(January 7, 1993).
Regarding the issue of timeliness, appellant contends on appeal that
there was "no EEO posting in her immediate work area." In its response
to appellant's appeal, the agency asserts that all employees, including
appellant, who were assigned to the Human Resources Department were aware
of the names and telephone numbers of the EEO Counselors, that there
were postings of EEO Counselors throughout the facility and employees
were periodically briefed regarding EEO rights and time frames associated
with the complaint process.
It is well-settled that constructive knowledge of the time limit for
contacting an EEO Counselor will be imputed to a complainant where the
agency has fulfilled its statutory duty of posting notices informing
employees of their rights and obligations under Title VII. Thompson
v. Department of the Army, EEOC Request No. 05910474 (September 12, 1991).
In order to impute constructive knowledge to the complainant, the agency,
however, may not rely on a generalized affirmation that it posted EEO
information; it must submit specific evidence that the poster contained
notice of the applicable time limits. Pride v. U.S. Postal Service, EEOC
Request No. 05930134 (August 19, 1993); Yashuk v. U.S. Postal Service,
EEOC Request No. 05890382 (June 2, 1989).
We are unable to affirm the agency's dismissal of allegations 4a-4f
on the grounds of untimely EEO contact because the agency has not
established that appellant was aware of the applicable limitation period
for contacting an EEO Counselor. Without specific evidence that notices
containing the 30 and/or 45-day time limit were conspicuously posted or
specific evidence that appellant was otherwise aware of the time limit,
the Commission cannot determine the timeliness of appellant's EEO contact.
See York v. Department of Veterans Affairs, EEOC Request No. 05940575
(November 3, 1994) (agency's generalized statement that appellant was made
aware of time frame without information that notice actually contained
the time limit not considered sufficient proof of constructive notice);
Santiago v. U.S. Postal Service, EEOC Request No. 05950272 (July 6,
1995) (agency official's affidavit that he maintained bulletin boards
containing information on EEO rights and responsibilities, including time
limits, found to constitute sufficient proof of constructive notice).
The record contains no evidence that appellant had actual or constructive
notice of the limitation period. The agency's generalized assertions
that it displayed posters of the EEO process and that appellant knew of
the applicable time limits because she worked in Human Resources do not
provide a sufficient basis upon which the Commission can conclude that
appellant was aware of the time limit for Counselor contact.
Regarding the contacts made by appellant prior to September 20, 1995,
appellant alleged in her complaint that she first contacted EEO Counselor
NN in June or July 1994, regarding allegation 4b and a promotion.
Appellant also alleged that she contacted the EEO Office again around
September 20-25, 1994, after she learned about Person A's promotion.
She alleges that she spoke to EEO Counselor DB.
The agency's Report reveals that appellant stated that she spoke to EEO
Specialist SJ in 1989, regarding allegation 4a. In its Report, the agency
stated that there were no records indicating that appellant requested
counseling after this meeting with SJ. The Report also indicates that NN
remembered discussing the completion of the Form 398 and told her that
the incidents involved Privacy Act violations and suggested that she
contact the agency's legal office. No other contacts are referenced
in the Report. The Report also indicates that if discrimination was
raised during appellant's contacts, appellant would have been referred
for counseling.
In responding to the Report, appellant asserts on appeal that when she
met with NN in July 1994, he never gave her any guidance regarding the
EEO process and did not refer her to the legal office. Appellant further
contends that during her 14 years working for the agency, she was never
made aware of the EEO process and that despite several complaints made
to her supervisor, she was never informed that she should contact the EEO
office. Appellant asserts that she contacted the EEO office on September
22, 1994, and made an appointment with DB. At her appointment, she
discussed Form 398, violation of her privacy and her not being selected
for promotions. Appellant further asserts that after meeting with DB,
DB telephoned her and told her that she had no basis for an EEO complaint.
Appellant also asserts that she contacted EEO Counselor CW prior to 1995,
regarding an accusation made against her by Person B but she was not
offered any guidance.
The information provided in the agency's unsigned Report does not
sufficiently address the contact or timeliness issues. For example,
while the Report states that there are no records or evidence that
appellant requested counseling after meeting with EEO Counselor SJ,
the Report does not indicate how that conclusion was obtained. It is
also not clear whether appellant in fact met with SJ. The agency also
indicated in the Report that appellant could not have met with DB prior to
January 1995, but provided no independent proof to support its assertion
nor furnished any proof regarding the contacts with DB.
Similarly, the Commission notes that while the agency states in its
appeal brief that NN was not an EEO Counselor, there is also no evidence
to support the assertion.<4> Moreover, there is no statement from NN
addressing specifically his contacts with appellant, what was discussed
and what actions, if any, he advised appellant to take. Other than the
agency's assertions in the Investigative Report and in its brief that
allegations which do not fall within the discrimination statutes are
referred elsewhere, there is no proof which would establish the office's
policies and record keeping procedures in these matters.
Overall, the inquiry the agency undertook on remand before dismissing
the allegations for untimeliness was insufficient. Accordingly, for the
second time, we cannot make a reasoned determination as to the timeliness
of appellant's EEO contact. In addition, we note that the agency's final
decision is also lacking in its completeness. Nowhere, for example, does
the agency address when appellant may have had a reasonable suspicion
of discrimination as to any of the alleged discriminatory actions
or the appellant's intent to pursue the EEO process, issues relevant
to a determination of timeliness in the present matter. Nor does the
agency provide an adequate analysis of the continuing violation theory.
The Commission cannot make findings based on the agency's unsupported and
conclusive assertions. The Commission has consistently held that where,
as here, there is an issue of timeliness, "[a]n agency always bears
the burden of obtaining sufficient information to support a reasoned
determination as to timeliness." Williams v. Department. of Defense,
EEOC Request No. 05920506 (August 25, 1992). Accordingly, we must again
remand this matter.
Consistent with our discussion herein, the agency's dismissal of
allegations 4a-4f is VACATED. On remand, the agency shall conduct a
supplemental investigation on the timeliness issue consistent with the
Order below. The agency's dismissal of allegations (a), (b), and (h) is
AFFIRMED. The agency's dismissal of allegations (c) through (g), and (i),
is REVERSED and these allegations are REMANDED for further processing.
ORDER
The agency is ORDERED to conduct a supplemental investigation and to
take the following actions:
1. The agency shall conduct an inquiry sufficient to enable it to make
a reasoned determination as to the timeliness of EEO Counselor contact.
The agency shall notify appellant that she has fifteen (15) calendar days
from receipt of the agency's notification in which to provide the agency
with clear information regarding her EEO contacts. Appellant shall
be requested to provide the dates, names, and places of alleged EEO
contacts prior to September 20, 1995, and the nature of each of those
alleged contacts. Thereafter, the agency shall supplement the record
with affidavits and other relevant evidence from those EEO individuals
purportedly contacted by appellant. Such evidence shall include,
but is not limited to, the dates of the prior contacts, the nature of
those contacts and shall denote whether appellant exhibited an intent
to begin the EEO process and to pursue her allegations when the contacts
were made. If the agency is unable to obtain specific information from
EEO officials who may no longer be available, then the agency should
so state and obtain the required information from EEO officials having
custody and control of the records.
2. The agency shall supplement the record with specific evidence that
shall include, but is not limited to, affidavits from relevant agency
officials confirming the existence of EEO posters, their contents and
location relative to where appellant would be expected to see them,
and the effective dates of posting and any other documentation regarding
whether appellant had actual or constructive notice of the time period for
Counselor contact during the relevant time period. In the event notices
were posted, the agency shall place copies of the posters (or affidavits
describing the posters if the posters are unavailable) in the record.
The agency shall gather any other evidence necessary to establish when
appellant learned of the time limit for contacting an EEO Counselor.
3. In dismissing any of the allegations for untimeliness, the agency
shall provide a detailed and reasoned analysis and the facts relied upon
as to each and every allegation dismissed.
4. The agency shall not dismiss any allegation de facto by omitting an
issue from the final decision.
5. After completion of the investigation, the agency shall decide whether
to process or dismiss the remanded allegations. 29 C.F.R. §1614.106
et seq. The supplemental investigation and issuance of a notice of
processing and/or final agency decision must be completed within 45
(forty-five) calendar days of the date this decision becomes final.
A copy of the notice of processing and/or a copy of the new final agency
decision regarding allegations 4a-4f must be sent to the Compliance
Officer as referenced below.
6. The agency is ORDERED to process the remanded allegations (c) through
(g), and (i) in accordance with 29 C.F.R. §1614.108. The agency shall
acknowledge to the appellant that it has received the remanded allegations
(c) through (g), and (i) within thirty (30) calendar days of the date
this decision becomes final. The agency shall issue to appellant a
copy of the investigative file and also shall notify appellant 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 appellant requests a final decision without
a hearing, the agency shall issue a final decision within sixty (60)
days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
with regard to allegations (c) through (g), and (i) must be sent to the
Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. §1614.503 (a). The appellant 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. §§ 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. §§ 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. §1614.410.
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 (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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 your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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 (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:
Oct. 20, 1998
DATE Ronnie Blumenthal, Director
1We note that appellant alleged that she was discriminated against also
on the bases of color (White), physical and mental disability (duress,
stress, emotional, disability annuitant).
2Appellant did not set forth individual allegations of discrimination in
her complaint. Rather, she appended to her complaint a 26-page narrative
statement from which the agency extrapolated the individual allegations
identified in FAD-1 and FAD-2.
3It appears that appellant may be alleging that having to complete
the Form 398 or its use by the agency was a violation of her right to
privacy. The Commission has consistently held that an alleged violation
of the Privacy Act is outside the purview of the EEO process. See Bucci
v. Department of Education, EEOC Request No. 05890289 (April 12, 1989).
4We note that we have held that a complainant satisfies the Counselor
contact requirement by contacting an agency official logically connected
with the EEO process and exhibiting an intent to begin the EEO process.
Floyd v. National Guard Bureau, EEOC Request No. 05890086 (June 22, 1989).
| [
"Kapp v. Department of the Navy, EEOC Request No. 05940662 (January 23, 1995)",
"Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994)",
"Kleinman v. U.S. Postal Service, EEOC Request No. 05940579 (September 22, 1994)",
"Cheh v. Nuclear Regulatory Commission, EEOC Appeal No. 01952389... | [
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208 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120055459.txt | 0120055459.txt | TXT | text/plain | 15,253 | Michael P. Emerson, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, (U.S. Immigration and Customs Enforcement), Agency. | August 5, 2005 | Appeal Number: 0120055459
Legal Analysis:
the Commission AFFIRMS
the agency's FAD.1
On January 10, 1999, complainant filed an EEO complaint alleging that he
was discriminated against on the bases of race (Caucasian), sex (male),
disability (anxiety reaction), age (D.O.B. 11/14/50), and reprisal for
prior protected EEO activity under Title VII of the Civil Rights Act of
1964 when on January 1, 1999, he was not selected for the position of
Equal Employment Opportunity (EEO) Manager, GS-0260-13, at the agency's
Administrative Center in Dallas, Texas.2
At the time of the complaint, complainant served as an EEO Manager,
GS-0260-12 at the agency's Border Patrol, San Diego Sector until
his retirement on December 4, 1999. Complainant was employed by the
agency as an EEO Manager at the GS-12 level since 1994, and applied
for the GS-13 position. He submitted the required material, was rated
qualified and was referred to the Selection Panel; his interview with
the Panel took place over the telephone. The Panel consisted of the
EEO Programs Management Office Chief (PMC), the agency's Dallas Office
Director (Dallas Director) and the agency's Headquarters EEO Director
(HQ EEO Director). On January 1, 1999, complainant was notified that he
was not selected for the position of EEO Manager, GS-13, at the Dallas
Administrative Center.
Believing he was the victim of discrimination and retaliation, complainant
sought EEO counseling and filed the aforementioned formal complaint.
At the | Michael P. Emerson,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
(U.S. Immigration and Customs Enforcement),
Agency.
Appeal No. 0120055459
Hearing No. 310-A2-5497X
Agency Nos. HS 04-1186; I-99-CO47
DECISION
On August 5, 2005, complainant filed an appeal from the agency's July 21,
2005, final decision (FAD) concerning his equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of
Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42
U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. §
621 et seq. The appeal is deemed timely and is accepted pursuant to 29
C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS
the agency's FAD.1
On January 10, 1999, complainant filed an EEO complaint alleging that he
was discriminated against on the bases of race (Caucasian), sex (male),
disability (anxiety reaction), age (D.O.B. 11/14/50), and reprisal for
prior protected EEO activity under Title VII of the Civil Rights Act of
1964 when on January 1, 1999, he was not selected for the position of
Equal Employment Opportunity (EEO) Manager, GS-0260-13, at the agency's
Administrative Center in Dallas, Texas.2
At the time of the complaint, complainant served as an EEO Manager,
GS-0260-12 at the agency's Border Patrol, San Diego Sector until
his retirement on December 4, 1999. Complainant was employed by the
agency as an EEO Manager at the GS-12 level since 1994, and applied
for the GS-13 position. He submitted the required material, was rated
qualified and was referred to the Selection Panel; his interview with
the Panel took place over the telephone. The Panel consisted of the
EEO Programs Management Office Chief (PMC), the agency's Dallas Office
Director (Dallas Director) and the agency's Headquarters EEO Director
(HQ EEO Director). On January 1, 1999, complainant was notified that he
was not selected for the position of EEO Manager, GS-13, at the Dallas
Administrative Center.
Believing he was the victim of discrimination and retaliation, complainant
sought EEO counseling and filed the aforementioned formal complaint.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing but subsequently withdrew his request. Consequently,
the agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b)
concluding that complainant failed to prove that he was subjected to
discrimination as alleged.
In the FAD, the agency did not make a finding regarding whether
complainant established a prima facie case of discrimination. However,
the FAD noted the reasons given by members of the Selection Panel for not
selecting complainant for the GS-13 EEO Manager position. The FAD noted
that the Dallas Director (White female, age 46) stated that the Panel
interviewed all the candidates who were placed on the Best Qualified list,
and that based on the applications and interviews, the members of the
Panel felt the selectee (Hispanic male; age 57) was the best candidate.
The Dallas Director stated that although she made the selection, she
relied on the Panel's recommendation and that complainant's race, sex
and age were not factors in the selection. The Dallas Director also
stated that she had no knowledge of complainant's alleged disability or
his prior EEO experience. She also stated that the selectee was male and
older than complainant. FAD at 3. The FAD noted that the HQ EEO Director
(Black female; age 51) stated that the selectee was the best candidate
for the position based on his record and interview. The HQ EEO Director
stated that while both the selectee and complainant were qualified for
the GS-13 position, the job requirements in the vacancy announcement were
the most important criteria she considered in recommending the selectee
for the position. She further stated that complainant's race, sex,
age, disability and prior EEO activity were not considered during the
selection process, and she was not aware of complainant's disability.
Finally, the FAD noted the statement of the PMC (White female, age
42), who stated that in recommending the selectee over complainant,
the selectee had "multi-program experience" servicing a region of the
agency, while complainant had only serviced a sector. The PMC stated
that complainant's race and age were not considered during the selection
process, but she was aware that he had prior EEO activity.
The FAD considered complainant's allegations of discrimination, and noted
that he believed the HQ EEO Director made comments about him, which led
him to believe he was being discriminated against due to his disability.
In addition, the FAD noted that complainant believed the perception
of him was that he was not a team player. The FAD also noted that
complainant alleged he was discriminated against due to his disability,
as when he was released from the military, he was classified as being
a 50% disabled veteran.
The FAD found that complainant failed to establish that the agency's
articulated reasons for his non-selection to the GS-13 EEO Manager
position were more likely than not a pretext for discrimination or
retaliation. In so finding, the FAD stated that complainant was not
selected for the position as the Selection Panel agreed that the selectee
was the most qualified candidate based on his EEO-related work experience.
The FAD further found that there was no evidence in the record to suggest
that complainant was not selected for the position due to his race,
and found that the record did not show that his qualifications were
clearly superior to those of the selectee. The FAD also found that the
evidence did not show that complainant's prior EEO activity entered into
management's selection decision. Finally, the FAD found that the record
did not support complainant's allegation that his discharge document
from the military stating he was a 50% disabled veteran rose to the
level of a disability as covered by the Rehabilitation Act. The FAD
also found that there was no evidence that complainant was not selected
for the position at issue due to his disability. Complainant has made
no arguments in support of his appeal.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. § 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. § 1614.405(a). See EEOC Management
Directive 110, Chapter 9, § VI.A. (November 9, 1999). (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Department
of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Assuming, arguendo, that complainant established a prima facie case of
discrimination based on race, sex, age, disability and retaliation,
we find that the agency articulated legitimate non-discriminatory
reasons for not selecting complainant for the GS-13 EEO Manager
position. Specifically, the members of the Selection Panel stated that,
while complainant was an excellent employee who was qualified for
the GS-13 EEO Manager position, the selectee was better qualified for
the position due to his experience with EEO and interview answers. In
addition, the PMC, who best understood the requirements of the position
at issue, stated that the selectee was better qualified due to his
multi-program experience (AEP, training and complaints) servicing a
region, while complainant only serviced a sector and had no experience
in AEP.3 FAD at 3; Investigative Report, at Exhibit 10. We find that
complainant failed to show by a preponderance of the evidence that the
agency's proffered reason was a pretext for discrimination. Complainant
stated, in his complaint, that he believed he was discriminated against
as all of the EEO Managers at the agency were all women. In addition,
complainant alleged that he was discriminated against due to his discharge
document from the military classifying him as 50% disabled. However,
complainant failed to elaborate as to why he believed that he was not
selected for the GS-13 EEO Manager position due to the alleged bases.
We note that the selectee for the position was a male; older than
complainant; and the members of the Selection Panel stated they were not
aware that complainant was classified as 50% disabled upon his military
discharge. Further, there is no evidence in the record which supports
a finding that the Selection Panel considered complainant's race, sex,
age, alleged disability or prior EEO activity in making its selection
decision for the position at issue. Based on a thorough review of the
record, we find that complaint failed to establish by a preponderance
of the evidence that he was discriminated against as alleged.
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
_____4/13/07______________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
2 The Commission notes that at the time complainant applied for the
GS-13 EEO Manager position, the agency was known as the Immigration and
Naturalization Service (INS) and was part of the Department of Justice.
Subsequently, the law enforcement arms of the former INS and the former
U.S. Customs Service were combined within the Department of Homeland
Security, and is now known as U.S. Immigration and Customs Enforcement
(ICE).
3 The record does not establish what "AEP" is an abbreviation for,
although it may stand for Affirmative Employment Programs within the
context of the agency's EEO Office.
??
??
??
??
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
| [
"Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997)",
"Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995)",
"411 U.S. 792",
"438 U.S. 567",
"460 U.S. 711",
"530 U.S. 133",
"120 S.Ct. 2097",
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209 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A24772_r.txt | 01A24772_r.txt | TXT | text/plain | 6,596 | John Trabeaux v. United States Postal Service 01A24772 January 28, 2003 . John Trabeaux, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. | January 28, 2003 | Appeal Number: 01A24772
Legal Analysis:
The Commission agrees with the agency. We find that complainant's
contact of an EEO Counselor approximately one year after his demotion
and 108 days after his retirement was untimely. Complainant claimed
that he was unaware of the time limit for contacting an EEO Counselor.
However, the agency established that complainant had constructive notice
of his responsibility to contact an EEO Counselor in prompt fashion.
The agency submitted an affidavit from an agency employee that attests
to the posting of an EEO poster at complainant's work facility during
the period of the alleged discrimination. The EEO poster provided by
the agency contains instructions on how to file an EEO complaint and it
sets forth a specific time period for contacting an EEO Counselor.<1>
We find that complainant has not refuted the agency's position that he
had constructive notice of the requirement that he promptly contact
an EEO Counselor.
Final Decision:
Accordingly, the agency's decision dismissing complainant's complaint was proper pursuant to 29 C.F.R. § 1614.107(a)(2) and is AFFIRMED. | John Trabeaux v. United States Postal Service
01A24772
January 28, 2003
.
John Trabeaux,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A24772
Agency No. 1-G-703-0004-02
DECISION
Complainant initiated contact with the agency's EEO Office on October
31, 2001. On June 13, 2002, complainant filed a formal EEO complaint
wherein he claimed that he was discriminated against on the bases of
his disability (lumbar spondylothesis, post-traumatic stress) and age
(dob 10/10/49) when he was demoted to the position of Part-time Flexible
Distribution Clerk on October 12, 2000, and when he was forced to retire
effective July 15, 2001, even though there were positions available that
could have accommodated his medical restrictions.
By decision dated August 9, 2002, the agency dismissed the complaint
on the grounds that complainant failed to initiate contact with an EEO
Counselor in a timely manner. The agency determined that complainant's
EEO contact on October 31, 2001, with regard to his complaint, was after
the expiration of the 45-day time limit for contacting an EEO Counselor.
The Commission agrees with the agency. We find that complainant's
contact of an EEO Counselor approximately one year after his demotion
and 108 days after his retirement was untimely. Complainant claimed
that he was unaware of the time limit for contacting an EEO Counselor.
However, the agency established that complainant had constructive notice
of his responsibility to contact an EEO Counselor in prompt fashion.
The agency submitted an affidavit from an agency employee that attests
to the posting of an EEO poster at complainant's work facility during
the period of the alleged discrimination. The EEO poster provided by
the agency contains instructions on how to file an EEO complaint and it
sets forth a specific time period for contacting an EEO Counselor.<1>
We find that complainant has not refuted the agency's position that he
had constructive notice of the requirement that he promptly contact
an EEO Counselor. Accordingly, the agency's decision dismissing
complainant's complaint was proper pursuant to 29 C.F.R. § 1614.107(a)(2)
and is AFFIRMED.
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
January 28, 2003
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1Although the poster submitted by the agency references a 30-day time
period for contacting an EEO Counselor rather than a 45-day time period,
we find that this outdated poster nevertheless apprised complainant of
the need for prompt contact of an EEO Counselor, and it does not change
our finding that complainant's EEO contact was untimely.
| [
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"42 U.S.C. § 2000e",
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210 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/05900823.txt | 05900823.txt | TXT | text/plain | 34,581 | December 31, 1990 | Appeal Number: 01900697
Complaint Allegations:
in her complaints dated April 3, 1986 and October 4, 1988. BACKGROUND Appellant filed two formal EEO complaints with the agency. In the first complaint dated April 3, 1986, appellant alleged that she had been subjected to race (Japanese), and sex (female) discrimination and reprisal (prior EEO activity) when she was: (a) suspended for five days on January 27, 1986, due to her purported refusal to obey her supervisor's written and verbal orders; (b) notified on February 18, 1986, that her within grade increase (WGI) would be withheld due to her alleged unsatisfactory performance; (c) issued a notice of suspension for 14 calendar days on February 18, 1986, for failing to obey orders; and (d) notified on February 18, 1986, that her position would be abolished.2 In her second complaint dated October 21, 1988, appellant alleged that she was subjected to reprisal (prior EEO activity) when the Morale Welfare and Recreation Director (hereinafter MWR Director), gave her a negative character reference and divulged that she had engaged in EEO activity to a prospective employer from the Department of the Army (hereinafter Army), in an attempt to blackball her from obtaining gainful employment. In response to appellant's complaints, the agency issued proposed agency decisions in July of 1988 and February of 1989, proposing findings of no discrimination or reprisal. Appellant was dissatisfied with these proposed agency decisions and at her request, her complaints were forwarded to an Administrative Judge (AJ) of the EEOC for a hearing. At the hearing stage, appellant's complaints were consolidated and the AJ rendered a recommended decision (RD) finding no discrimination or reprisal. Specifically, the AJ found that appellant had failed to show by a preponderance of the evidence that her five day suspension was taken for unlawful reasons. Similarly, the AJ found that appellant's 14 day suspension was proper. In connection with this allegation, the AJ also found that the testimony of appellant's first line supervisor (the Special Service Officer or SSO) was more credible than her testimony. Further, the AJ found that appellant experienced performance problems which justified the denial of her WGI. Additionally, the AJ found that although it was unfortunate that the MWR Director mentioned appellant's EEO activity in his contacts with the Army, his mentioning of this fact was not retaliatory in nature. Moreover, the AJ found that the Supervisory Budget Analyst, Army selecting official, credibly testified that his non-selection of appellant was based solely on her past disciplinary record. In its final agency decision (FAD) dated October 23, 1989, the agency adopted the RD of the AJ. In its previous decision, the Commission affirmed the FAD. With respect to her first complaint, the Commission found that appellant failed to establish a prima facie case of discrimination in connection with her suspension or denial of her WGI. Further, the Commission found that appellant did not establish a prima facie case of reprisal in connection with any of the allegations she raised in her first complaint because she had not filed any prior EEO complaints. With respect to appellant's second complaint, the Commission found that appellant established a prima facie case of reprisal, but had failed to show that the reasons articulated by the agency for its actions were pretextual. Consequently, the Commission did not ascribe any unlawful motives to the actions of the MWR Director. Appellant began her tenure with the agency on April 2, 1984, as a Budget Assistant GS-07. As a result of RIF procedures, appellant was separated from the agency on June 2, 1986. From all indications, appellant's brief tenure with the agency was a turbulent one. Besides her suspension, appellant was counseled, given a letter of caution and formally reprimanded for her conduct. The letter of caution was issued to appellant on February 5, 1985, due to her refusal to carry out the verbal and written instructions of the SSO.3 On May 21, 1985, appellant contacted an EEO Counselor regarding her title, her position description, and her performance appraisal. Although appellant indicated that her problems in these areas were not really an EEO matter, the EEO Counselor characterized her contact as a 'Potential EEO Complaint.' Both the MWR Director and the SSO were made aware of appellant's contact with the EEO office. According to appellant, she worked on July 28, 1984, which was a Saturday. Although she was told that she could not earn overtime for that day, appellant averred that she was told that she was entitled to compensatory time. It was not until over a year later, in November of 1985, that appellant claimed credit for that day on her timecard. Appellant was told by the SSO to remove the time from her timecard and she refused. Appellant stated that she would not have attempted to recoup this time except that she was being treated badly and she wanted to express her discontent. It is also established that in November of 1985, appellant was directed by the SSO to deliver paychecks to the library and she refused. Appellant averred that she inquired why she had to deliver paychecks to the library when there was a driver who could do it faster. Appellant also averred that there were no paychecks to be delivered on the day in question. By memorandum dated December 3, 1984, the SSO directed appellant to provide him with daily briefings in order to provide adequate supervision of funds. Appellant refused to attend these meetings, describing them, inter alia, as daily combat between her and the SSO. Appellant also testified that no other employee was required to brief the SSO on a daily basis. (Hearing Transcript (H.T.) p. 298). On cross-examination, however, appellant conceded that two other employees under the direct supervision of the SSO (a military staff person and the civilian Recreation Director), gave daily briefings to the SSO. (H.T. pp. 299-300). It is also established that appellant was ordered on December 1, 1985, to prepare a turnover file for the Fiscal Clerk position and she failed to carry out this order. In response to this charge, appellant averred that she was never instructed4 to prepare a turnover file, but rather a Letter of Instruction. With respect to her failure to prepare the Letter of Instruction, appellant argued that she needed, but did not receive more time, clarity, and guidance from the SSO.5 After appellant was separated from the agency, she submitted an application for a Budget Clerk position with the Army. According to the Supervisory Budget Analyst (SBA) of the Army, based on a negative character reference he received from the MWR Director, he decided not to hire appellant. However, the SBA indicated that appellant's EEO activity was not a factor in his decision not to hire her. (H.T. p. 386). The MWR Director conceded in his testimony that he told the SBA of appellant's EEO activity while she was employed at Camp Smith. However, the MWR Director testified that he made mention of appellant's EEO activity because appellant had challenged her suspension on EEO grounds and an Investigator had found that her allegations of discriminatory treatment were unfounded. (H.T. pp. 510-511). Additionally, the MWR Director testified that he informed the SBA that appellant had another complaint pending investigation. Id. It is also established that based on a recommendation of the MWR Director, the SBA sent him a notice of employment inquiry so that the (the MWR Director) could put his negative character reference of appellant in writing. (H.T. p. 512).6 Nevertheless, the MWR Director testified that appellant's prior EEO activity did not play a role in the type of reference that he provided to the Army. (H.T. p. 515). Contrary to his testimony at the hearing, in his affidavit to the EEO Investigator, the MWR Director averred that he had not discussed appellant's EEO activity with the SBA. (Ex. 7 p. 2, File 2). When this inconsistency in his testimony was brought to his attention, the MWR Director indicated that the affidavit was written by the EEO Investigator and not by him. (H.T. pp. 509-10). Although he signed and made several corrections of his affidavit, the MWR Director averred that he simply overlooked this portion of the document. (H.T. p. 510). At the hearing a Personnel Staffing Specialist (PSS) of the Army testified that the MWR Director called her office and recommended that the Army not hire appellant. (H.T. pp. 53-4). The PSS indicated that she found the MWR Director's message to be unusual because it was unsolicited. In his testimony, the MWR Director admits that he called the Army's civilian personnel office in an attempt to locate the SBA. (H.T. p. 513). However, he denied that he told the PSS that the Army should not hire appellant. (H.T. p. 530). Rather, the MWR Director averred that he told the PSS that he had negative information regarding the appellant which he wanted to put in writing. (H.T. pp. 530-1). In an affidavit associated with appellant's first complaint (designated as Agency No. 89-239), the MWR Director was asked by the EEO Investigator to '(p)lease give the appropriate date and circumstances by which (he) became aware of (appellant's) participation in protected EEO activity.' In response to this question, the MWR Director responded that he did not 'know what 'EEO protected activities' are...' (Ex. 12 p. 10 File 1). At the hearing, the MWR Director was asked by the AJ if he now knew what protected EEO activities were and the MWR Director indicated that he did not. (H.T. p. 543). In an earlier affidavit associated with appellant's second complaint (designated as Agency No. 89-240), however, the MWR Director averred that he 'believed in the EEO process,' which he equated with the military MASO process. According to the MWR Director, the MASO process, was a mechanism which he himself had used in the past. (Ex. 7 File 2). In her request to reopen (RTR), appellant argues that the Commission's previous decision is flawed because it relied solely on the tripartite analytical scheme established in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973) and its progeny, while it ignored the analytical framework and standards established in more recent Supreme Court cases such as Price Waterhouse v. Hopkins, 109 S. Ct. 1775 (1989). In this respect appellant argues that she was entitled to bypass the McDonnell Douglas analytical framework with respect to her first complaint because there was direct evidence of discrimination. The direct evidence of discrimination, according to appellant, lies in the fact that both the SSO and the MWR Director allegedly submitted perjured testimony. According to appellant, the Commission's previous decision failed to take cognizance of this perjured testimony because it engaged in a 'slavish adherence' to the testimony of the agency's officials. Further, appellant argues that the Commission's previous decision erroneously assumes that perjury can only be shown through documentary evidence or testimony from other witnesses, instead of through the internal inconsistencies and contradictions of the agency officials' testimony. In the alternative, appellant argues that if the McDonnell Douglas analytical framework was to be employed, she met her burden of showing pretext because she succeeded in showing that the testimony of the SSO and the MWR Director was unworthy of credence. Similarly, with respect to her second complaint, appellant argues that the Commission failed to find that the reasons articulated by the agency were pretextual because it ignored the contradictions and inconsistencies in the testimony of the agency's witnesses. Appellant also characterizes her second complaint as a mixed motives case and objects that the Commission did not rely on the analytical framework established in Price Waterhouse in discussing this portion of her consolidated complaint. In response to appellant's RTR, the agency argues that appellant fails to raise any issues of fact or law which are deserving of the Commissioners' attention. The agency also argues that appellant's RTR is a mere reiteration of the arguments previously rejected by the Commission. Accordingly, the agency urges the Commission to deny appellant's RTR.
Background:
Appellant filed two formal EEO complaints with the agency. In the first complaint dated April 3, 1986, appellant alleged that she had been subjected to race (Japanese), and sex (female) discrimination and reprisal (prior EEO activity) when she was:
(a) suspended for five days on January 27, 1986, due to her purported refusal to obey her supervisor's written and verbal orders;
(b) notified on February 18, 1986, that her within grade increase (WGI) would be withheld due to her alleged unsatisfactory performance;
(c) issued a notice of suspension for 14 calendar days on February 18, 1986, for failing to obey orders; and
(d) notified on February 18, 1986, that her position would be abolished.2
In her second complaint dated October 21, 1988, appellant alleged that she was subjected to reprisal (prior EEO activity) when the Morale Welfare and Recreation Director (hereinafter MWR Director), gave her a negative character reference and divulged that she had engaged in EEO activity to a prospective employer from the Department of the Army (hereinafter Army), in an attempt to blackball her from obtaining gainful employment. In response to appellant's complaints, the agency issued proposed agency decisions in July of 1988 and February of 1989, proposing findings of no discrimination or reprisal. Appellant was dissatisfied with these proposed agency decisions and at her request, her complaints were forwarded to an Administrative Judge (AJ) of the EEOC for a hearing.
At the hearing stage, appellant's complaints were consolidated and the AJ rendered a recommended decision (RD) finding no discrimination or reprisal. Specifically, the AJ found that appellant had failed to show by a preponderance of the evidence that her five day suspension was taken for unlawful reasons. Similarly, the AJ found that appellant's 14 day suspension was proper. In connection with this allegation, the AJ also found that the testimony of appellant's first line supervisor (the Special Service Officer or SSO) was more credible than her testimony. Further, the AJ found that appellant experienced performance problems which justified the denial of her WGI. Additionally, the AJ found that although it was unfortunate that the MWR Director mentioned appellant's EEO activity in his contacts with the Army, his mentioning of this fact was not retaliatory in nature. Moreover, the AJ found that the Supervisory Budget Analyst, Army selecting official, credibly testified that his non-selection of appellant was based solely on her past disciplinary record. In its final agency decision (FAD) dated October 23, 1989, the agency adopted the RD of the AJ.
In its previous decision, the Commission affirmed the FAD. With respect to her first complaint, the Commission found that appellant failed to establish a prima facie case of discrimination in connection with her suspension or denial of her WGI. Further, the Commission found that appellant did not establish a prima facie case of reprisal in connection with any of the allegations she raised in her first complaint because she had not filed any prior EEO complaints. With respect to appellant's second complaint, the Commission found that appellant established a prima facie case of reprisal, but had failed to show that the reasons articulated by the agency for its actions were pretextual. Consequently, the Commission did not ascribe any unlawful motives to the actions of the MWR Director.
Appellant began her tenure with the agency on April 2, 1984, as a Budget Assistant GS-07. As a result of RIF procedures, appellant was separated from the agency on June 2, 1986. From all indications, appellant's brief tenure with the agency was a turbulent one. Besides her suspension, appellant was counseled, given a letter of caution and formally reprimanded for her conduct. The letter of caution was issued to appellant on February 5, 1985, due to her refusal to carry out the verbal and written instructions of the SSO.3 On May 21, 1985, appellant contacted an EEO Counselor regarding her title, her position description, and her performance appraisal. Although appellant indicated that her problems in these areas were not really an EEO matter, the EEO Counselor characterized her contact as a 'Potential EEO Complaint.' Both the MWR Director and the SSO were made aware of appellant's contact with the EEO office.
According to appellant, she worked on July 28, 1984, which was a Saturday. Although she was told that she could not earn overtime for that day, appellant averred that she was told that she was entitled to compensatory time. It was not until over a year later, in November of 1985, that appellant claimed credit for that day on her timecard. Appellant was told by the SSO to remove the time from her timecard and she refused. Appellant stated that she would not have attempted to recoup this time except that she was being treated badly and she wanted to express her discontent. It is also established that in November of 1985, appellant was directed by the SSO to deliver paychecks to the library and she refused. Appellant averred that she inquired why she had to deliver paychecks to the library when there was a driver who could do it faster. Appellant also averred that there were no paychecks to be delivered on the day in question.
By memorandum dated December 3, 1984, the SSO directed appellant to provide him with daily briefings in order to provide adequate supervision of funds. Appellant refused to attend these meetings, describing them, inter alia, as daily combat between her and the SSO. Appellant also testified that no other employee was required to brief the SSO on a daily basis. (Hearing Transcript (H.T.) p. 298). On cross-examination, however, appellant conceded that two other employees under the direct supervision of the SSO (a military staff person and the civilian Recreation Director), gave daily briefings to the SSO. (H.T. pp. 299-300).
It is also established that appellant was ordered on December 1, 1985, to prepare a turnover file for the Fiscal Clerk position and she failed to carry out this order. In response to this charge, appellant averred that she was never instructed4 to prepare a turnover file, but rather a Letter of Instruction. With respect to her failure to prepare the Letter of Instruction, appellant argued that she needed, but did not receive more time, clarity, and guidance from the SSO.5 After appellant was separated from the agency, she submitted an application for a Budget Clerk position with the Army. According to the Supervisory Budget Analyst (SBA) of the Army, based on a negative character reference he received from the MWR Director, he decided not to hire appellant. However, the SBA indicated that appellant's EEO activity was not a factor in his decision not to hire her. (H.T. p. 386).
The MWR Director conceded in his testimony that he told the SBA of appellant's EEO activity while she was employed at Camp Smith. However, the MWR Director testified that he made mention of appellant's EEO activity because appellant had challenged her suspension on EEO grounds and an Investigator had found that her allegations of discriminatory treatment were unfounded. (H.T. pp. 510-511). Additionally, the MWR Director testified that he informed the SBA that appellant had another complaint pending investigation. Id. It is also established that based on a recommendation of the MWR Director, the SBA sent him a notice of employment inquiry so that the (the MWR Director) could put his negative character reference of appellant in writing. (H.T. p. 512).6 Nevertheless, the MWR Director testified that appellant's prior EEO activity did not play a role in the type of reference that he provided to the Army. (H.T. p. 515).
Contrary to his testimony at the hearing, in his affidavit to the EEO Investigator, the MWR Director averred that he had not discussed appellant's EEO activity with the SBA. (Ex. 7 p. 2, File 2). When this inconsistency in his testimony was brought to his attention, the MWR Director indicated that the affidavit was written by the EEO Investigator and not by him. (H.T. pp. 509-10). Although he signed and made several corrections of his affidavit, the MWR Director averred that he simply overlooked this portion of the document. (H.T. p. 510). At the hearing a Personnel Staffing Specialist (PSS) of the Army testified that the MWR Director called her office and recommended that the Army not hire appellant. (H.T. pp. 53-4). The PSS indicated that she found the MWR Director's message to be unusual because it was unsolicited. In his testimony, the MWR Director admits that he called the Army's civilian personnel office in an attempt to locate the SBA. (H.T. p. 513). However, he denied that he told the PSS that the Army should not hire appellant. (H.T. p. 530). Rather, the MWR Director averred that he told the PSS that he had negative information regarding the appellant which he wanted to put in writing. (H.T. pp. 530-1).
In an affidavit associated with appellant's first complaint (designated as Agency No. 89-239), the MWR Director was asked by the EEO Investigator to '(p)lease give the appropriate date and circumstances by which (he) became aware of (appellant's) participation in protected EEO activity.' In response to this question, the MWR Director responded that he did not 'know what 'EEO protected activities' are...' (Ex. 12 p. 10 File 1). At the hearing, the MWR Director was asked by the AJ if he now knew what protected EEO activities were and the MWR Director indicated that he did not. (H.T. p. 543). In an earlier affidavit associated with appellant's second complaint (designated as Agency No. 89-240), however, the MWR Director averred that he 'believed in the EEO process,' which he equated with the military MASO process. According to the MWR Director, the MASO process, was a mechanism which he himself had used in the past. (Ex. 7 File 2).
In her request to reopen (RTR), appellant argues that the Commission's previous decision is flawed because it relied solely on the tripartite analytical scheme established in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973) and its progeny, while it ignored the analytical framework and standards established in more recent Supreme Court cases such as Price Waterhouse v. Hopkins, 109 S. Ct. 1775 (1989). In this respect appellant argues that she was entitled to bypass the McDonnell Douglas analytical framework with respect to her first complaint because there was direct evidence of discrimination. The direct evidence of discrimination, according to appellant, lies in the fact that both the SSO and the MWR Director allegedly submitted perjured testimony.
According to appellant, the Commission's previous decision failed to take cognizance of this perjured testimony because it engaged in a 'slavish adherence' to the testimony of the agency's officials. Further, appellant argues that the Commission's previous decision erroneously assumes that perjury can only be shown through documentary evidence or testimony from other witnesses, instead of through the internal inconsistencies and contradictions of the agency officials' testimony. In the alternative, appellant argues that if the McDonnell Douglas analytical framework was to be employed, she met her burden of showing pretext because she succeeded in showing that the testimony of the SSO and the MWR Director was unworthy of credence.
Similarly, with respect to her second complaint, appellant argues that the Commission failed to find that the reasons articulated by the agency were pretextual because it ignored the contradictions and inconsistencies in the testimony of the agency's witnesses. Appellant also characterizes her second complaint as a mixed motives case and objects that the Commission did not rely on the analytical framework established in Price Waterhouse in discussing this portion of her consolidated complaint.
In response to appellant's RTR, the agency argues that appellant fails to raise any issues of fact or law which are deserving of the Commissioners' attention. The agency also argues that appellant's RTR is a mere reiteration of the arguments previously rejected by the Commission. Accordingly, the agency urges the Commission to deny appellant's RTR.
Legal Analysis:
EEOC Regulations provide that the Commissioners may, in their discretion, reopen and reconsider any previous decision when the party requesting reopening submits written argument or evidence which tends to establish one or more of the three criteria prescribed by 29 C.F.R. 1613.235(b).1 The appellant bases her request on 29 C.F.R. 1613.235(b) (2) (the previous decision involved an erroneous interpretation of law or regulation or misapplication of established policy), and 29 C.F.R. 1613.235(b)(3) (the decision is of such exceptional nature as to have effects beyond the actual case at hand). For the reasons set forth herein, the appellant's request is granted in part and denied in part.
ISSUE PRESENTED
The issue presented herein is whether the Commission's previous decision correctly determined that appellant was not subjected to discriminatory and retaliatory treatment in connection with the allegations raised in her complaints dated April 3, 1986 and October 4, 1988.
BACKGROUND
Appellant filed two formal EEO complaints with the agency. In the first complaint dated April 3, 1986, appellant alleged that she had been subjected to race (Japanese), and sex (female) discrimination and reprisal (prior EEO activity) when she was:
(a) suspended for five days on January 27, 1986, due to her purported refusal to obey her supervisor's written and verbal orders;
(b) notified on February 18, 1986, that her within grade increase (WGI) would be withheld due to her alleged unsatisfactory performance;
(c) issued a notice of suspension for 14 calendar days on February 18, 1986, for failing to obey orders; and
(d) notified on February 18, 1986, that her position would be abolished.2
In her second complaint dated October 21, 1988, appellant alleged that she was subjected to reprisal (prior EEO activity) when the Morale Welfare and Recreation Director (hereinafter MWR Director), gave her a negative character reference and divulged that she had engaged in EEO activity to a prospective employer from the Department of the Army (hereinafter Army), in an attempt to blackball her from obtaining gainful employment. In response to appellant's complaints, the agency issued proposed agency decisions in July of 1988 and February of 1989, proposing findings of no discrimination or reprisal. Appellant was dissatisfied with these proposed agency decisions and at her request, her complaints were forwarded to an Administrative Judge (AJ) of the EEOC for a hearing.
At the hearing stage, appellant's complaints were consolidated and the AJ rendered a recommended decision (RD) finding no discrimination or reprisal. Specifically, the AJ found that appellant had failed to show by a preponderance of the evidence that her five day suspension was taken for unlawful reasons. Similarly, the AJ found that appellant's 14 day suspension was proper. In connection with this allegation, the AJ also found that the testimony of appellant's first line supervisor (the Special Service Officer or SSO) was more credible than her testimony. Further, the AJ found that appellant experienced performance problems which justified the denial of her WGI. Additionally, the AJ found that although it was unfortunate that the MWR Director mentioned appellant's EEO activity in his contacts with the Army, his mentioning of this fact was not retaliatory in nature. Moreover, the AJ found that the Supervisory Budget Analyst, Army selecting official, credibly testified that his non-selection of appellant was based solely on her past disciplinary record. In its final agency decision (FAD) dated October 23, 1989, the agency adopted the RD of the AJ.
In its previous decision, the Commission affirmed the FAD. With respect to her first complaint, the Commission found that appellant failed to establish a prima facie case of discrimination in connection with her suspension or denial of her WGI. Further, the Commission found that appellant did not establish a prima facie case of reprisal in connection with any of the allegations she raised in her first complaint because she had not filed any prior EEO complaints. With respect to appellant's second complaint, the Commission found that appellant established a prima facie case of reprisal, but had failed to show that the reasons articulated by the agency for its actions were pretextual. Consequently, the Commission did not ascribe any unlawful motives to the actions of the MWR Director.
Appellant began her tenure with the agency on April 2, 1984, as a Budget Assistant GS-07. As a result of RIF procedures, appellant was separated from the agency on June 2, 1986. From all indications, appellant's brief tenure with the agency was a turbulent one. Besides her suspension, appellant was counseled, given a letter of caution and formally reprimanded for her conduct. The letter of caution was issued to appellant on February 5, 1985, due to her refusal to carry out the verbal and written instructions of the SSO.3 On May 21, 1985, appellant contacted an EEO Counselor regarding her title, her position description, and her performance appraisal. Although appellant indicated that her problems in these areas were not really an EEO matter, the EEO Counselor characterized her contact as a 'Potential EEO Complaint.' Both the MWR Director and the SSO were made aware of appellant's contact with the EEO office.
According to appellant, she worked on July 28, 1984, which was a Saturday. Although she was told that she could not earn overtime for that day, appellant averred that she was told that she was entitled to compensatory time. It was not until over a year later, in November of 1985, that appellant claimed credit for that day on her timecard. Appellant was told by the SSO to remove the time from her timecard and she refused. Appellant stated that she would not have attempted to recoup this time except that she was being treated badly and she wanted to express her discontent. It is also established that in November of 1985, appellant was directed by the SSO to deliver paychecks to the library and she refused. Appellant averred that she inquired why she had to deliver paychecks to the library when there was a driver who could do it faster. Appellant also averred that there were no paychecks to be delivered on the day in question.
By memorandum dated December 3, 1984, the SSO directed appellant to provide him with daily briefings in order to provide adequate supervision of funds. Appellant refused to attend these meetings, describing them, inter alia, as daily combat between her and the SSO. Appellant also testified that no other employee was required to brief the SSO on a daily basis. (Hearing Transcript (H.T.) p. 298). On cross-examination, however, appellant conceded that two other employees under the direct supervision of the SSO (a military staff person and the civilian Recreation Director), gave daily briefings to the SSO. (H.T. pp. 299-300).
It is also established that appellant was ordered on December 1, 1985, to prepare a turnover file for the Fiscal Clerk position and she failed to carry out this order. In response to this charge, appellant averred that she was never instructed4 to prepare a turnover file, but rather a Letter of Instruction. With respect to her failure to prepare the Letter of Instruction, appellant argued that she needed, but did not receive more time, clarity, and guidance from the SSO.5 After appellant was separated from the agency, she submitted an application for a Budget Clerk position with the Army. According to the Supervisory Budget Analyst (SBA) of the Army, based on a negative character reference he received from the MWR Director, he decided not to hire appellant. However, the SBA indicated that appellant's EEO activity was not a factor in his decision not to hire her. (H.T. p. 386).
The MWR Director conceded in his testimony that he told the SBA of appellant's EEO activity while she was employed at Camp Smith. However, the MWR Director testified that he made mention of appellant's EEO activity because appellant had challenged her suspension on EEO grounds and an Investigator had found that her allegations of discriminatory treatment were unfounded. (H.T. pp. 510-511). Additionally, the MWR Director testified that he informed the SBA that appellant had another complaint pending investigation. Id. It is also established that based on a recommendation of the MWR Director, the SBA sent him a notice of employment inquiry so that the (the MWR Director) could put his negative character reference of appellant in writing. (H.T. p. 512).6 Nevertheless, the MWR Director testified that appellant's prior EEO activity did not play a role in the type of reference that he provided to the Army. (H.T. p. 515).
Contrary to his testimony at the hearing, in his affidavit to the EEO Investigator, the MWR Director averred that he had not discussed appellant's EEO activity with the SBA. (Ex. 7 p. 2, File 2). When this inconsistency in his testimony was brought to his attention, the MWR Director indicated that the affidavit was written by the EEO Investigator and not by him. (H.T. pp. 509-10). Although he signed and made several corrections of his affidavit, the MWR Director averred that he simply overlooked this portion of the document. (H.T. p. 510). At the hearing a Personnel Staffing Specialist (PSS) of the Army testified that the MWR Director called her office and recommended that the Army not hire appellant. (H.T. pp. 53-4). The PSS indicated that she found the MWR Director's message to be unusual because it was unsolicited. In his testimony, the MWR Director admits that he called the Army's civilian personnel office in an attempt to locate the SBA. (H.T. p. 513). However, he denied that he told the PSS that the Army should not hire appellant. (H.T. p. 530). Rather, the MWR Director averred that he told the PSS that he had negative information regarding the appellant which he wanted to put in writing. (H.T. pp. 530-1).
In an affidavit associated with appellant's first complaint (designated as Agency No. 89-239), the MWR Director was asked by the EEO Investigator to '(p)lease give the appropriate date and circumstances by which (he) became aware of (appellant's) participation in protected EEO activity.' In response to this question, the MWR Director responded that he did not 'know what 'EEO protected activities' are...' (Ex. 12 p. 10 File 1). At the hearing, the MWR Director was asked by the AJ if he now knew what protected EEO activities were and the MWR Director indicated that he did not. (H.T. p. 543). In an earlier affidavit associated with appellant's second complaint (designated as Agency No. 89-240), however, the MWR Director averred that he 'believed in the EEO process,' which he equated with the military MASO process. According to the MWR Director, the MASO process, was a mechanism which he himself had used in the past. (Ex. 7 File 2).
In her request to reopen (RTR), appellant argues that the Commission's previous decision is flawed because it relied solely on the tripartite analytical scheme established in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973) and its progeny, while it ignored the analytical framework and standards established in more recent Supreme Court cases such as Price Waterhouse v. Hopkins, 109 S. Ct. 1775 (1989). In this respect appellant argues that she was entitled to bypass the McDonnell Douglas analytical framework with respect to her first complaint because there was direct evidence of discrimination. The direct evidence of discrimination, according to appellant, lies in the fact that both the SSO and the MWR Director allegedly submitted perjured testimony.
According to appellant, the Commission's previous decision failed to take cognizance of this perjured testimony because it engaged in a 'slavish adherence' to the testimony of the agency's officials. Further, appellant argues that the Commission's previous decision erroneously assumes that perjury can only be shown through documentary evidence or testimony from other witnesses, instead of through the internal inconsistencies and contradictions of the agency officials' testimony. In the alternative, appellant argues that if the McDonnell Douglas analytical framework was to be employed, she met her burden of showing pretext because she succeeded in showing that the testimony of the SSO and the MWR Director was unworthy of credence.
Similarly, with respect to her second complaint, appellant argues that the Commission failed to find that the reasons articulated by the agency were pretextual because it ignored the contradictions and inconsistencies in the testimony of the agency's witnesses. Appellant also characterizes her second complaint as a mixed motives case and objects that the Commission did not rely on the analytical framework established in Price Waterhouse in discussing this portion of her consolidated complaint.
In response to appellant's RTR, the agency argues that appellant fails to raise any issues of fact or law which are deserving of the Commissioners' attention. The agency also argues that appellant's RTR is a mere reiteration of the arguments previously rejected by the Commission.
Final Decision:
Accordingly, the agency urges the Commission to deny appellant's RTR. ANALYSIS AND FINDINGS Upon reviewing appellant's RTR, as well as the remainder of the record, the Commission finds that there is insufficient evidence for us to disturb our previous finding that appellant was not subjected to retaliatory or discriminatory treatment in connection with the personnel actions challenged in her first complaint. With respect to her second complaint, however, the Commission finds that there is sufficient evidence on record showing that appellant was subjected to retaliatory treatment. It is for these reasons, as well as for the reasons discussed below that we grant appellant's RTR in connection with her second complaint and deny her RTR in connection with her first complaint. FIRST COMPLAINT Although we affirm the results in our previous decision, we disagree with the finding therein that appellant did not establish a prima facie case of reprisal with respect to the allegations raised in her first complaint. The Commission has interpreted 704(a) of Title VII in a very broad manner to provide protection for employees who engaged in oppositional or participatory Title VII activity. See EEOC Compliance Manual 614.1(a). Among other things, the Commission considers the filing or threatening to file an EEO complaint to be oppositional activity,. See EEOC Compliance Manual 614.5(b) (1); Gifford v. Atchinson, Topeka and Santa Fe Railway Co., 685 F.2d 1149, 1156 n. 3 (9th Cir. 1982). Despite appellant's failure to file an EEO complaint, when she contacted the EEO Counselor in May of 1985, she clearly meant for her contact to put the SSO on notice that she would file an EEO complaint if he did not redress what she perceived to be deficiencies in her working conditions. This is evidenced by the fact that she promptly notified the SSO of her contact with the EEO Counselor. Moreover, appellant's contact with the EEO Counselor in May of 1985 was brought to the attention of the MWR Director who was given a copy of the report written by the EEO Counselor following his meeting with appellant. The EEO Counselor identified this report as appellant's 'Potential EEO Complaint.' Given these facts, as well as the close proximity of time between appellant's EEO activity and the issuance of her suspension notice in December of 1985, the Commission finds that appellant established an initial prima facie case of reprisal in connection with the allegations raised in her first complaint. See Mitchell v. Baldridge, 759 F.2d 80 (D.C. Cir. 1985). With respect to the remaining bases of the first complaint, we concur with our previous finding that there is very little evidence that would support a finding that appellant established an initial prima facie case of discrimination. Also, for the reasons discussed infra, we disagree with appellant that there is direct evidence of discrimination in her first complaint. However, in light of the fact that this first complaint was subjected to an EEO hearing, and the agency articulated reasons for its challenged actions, we find that, rather than dispose of this complaint on the grounds that appellant failed to establish a prima facie case of discrimination, the Commission should have proceeded to determine whether the reasons articulated by the agency were legitimate or a mere pretext for discrimination. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711 (1983). With respect to the allegations raised in her first complaint, the agency fully established that appellant's five day suspension was proper because: (1) she disobeyed the SSO and refused to deliver paychecks to the library, (2) she refused to provide daily briefings to the SSO; and (3) she refused to amend her timecard. Similarly, the agency argued that appellant's 14 day suspension was proper because she refused to comply with the SSO's order to prepare a turnover file. Further, the agency presented evidence to show that the denial of appellant's WGI was proper because appellant's performance was deficient in that she failed to (1) submit her reports in a timely manner; (2) conduct quarterly inventories; and (3) effectively train managers. Appellant attempted to show the reasons articulated by the agency for its actions to be pretextual by, inter alia, challenging the need, usefulness, or legality of the SSO's action. The AJ found, however, that most of appellant's testimony in this regard was not credible and found the opposing testimony of the SSO to be more worthy of credence. Although appellant argued on appeal that the AJ's findings are not deserving of deferential treatment on review, we note that it is the Commission's policy to defer to the credibility findings of the AJ absent evidence of clear error. See Ronald F. King v. Department of Justice, EEOC Request No. 05900198 (August 20, 1990). We find no evidence of record that would cause us to reverse the credibility findings made by the AJ with respect to appellant's first complaint. Consequently, we find that appellant failed to show by a preponderance of the evidence that the reasons articulated by the agency for the challenged actions in her first complaint were pretextual. SECOND COMPLAINT As in her first complaint, appellant argued that there was direct evidence of discrimination in her second complaint which triggered the burdens of proof established in Price Waterhouse. In making this argument, appellant appears to equate untruthfulness with direct evidence of discrimination. However, the Commission does not consider untruthfulness, even of a repeated nature, to be tantamount to direct evidence of discrimination. Untruthfulness goes to the question of credibility and the showing of pretext. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). Although we find that the analytical scheme articulated in Price Waterhouse is not an appropriate paradigm to analyze appellant's second complaint, we find that under the traditional tripartite test established by McDonnell Douglas and its progeny, appellant has succeeded in showing that the negative character reference given by the MWR Director to the Army was retaliatory in nature. In the discussion that follows, we will examine the evidence on record which supports our finding of reprisal. In keeping with the ruling in Aikens, as well as our previous findings that appellant established prima facie case of reprisal in connection with her second complaint, we will focus our discussion on whether the reasons articulated by the MWR Director for his action are legitimate, or merely a pretext for reprisal. There is some inconsistency in the MWR Director's testimony regarding his reference to appellant's EEO activity in his communications with the SBA. In his affidavit, the MWR Director indicated that he made no mention of appellant's EEO activity to the SBA. At the EEO hearing, however, the NWR Director concedes that he did discuss appellant's EEO activity with the SBA. Although he did not give an express reason as to why he made mention of this fact to the SBA, his response suggests that he discussed this matter because appellant had challenged the agency's disciplinary actions in the EEO forum, but an investigation had purportedly found that her allegations of discriminatory treatment were unfounded. (H.T. p. 511). With respect to his written character reference, in which mention was also made of appellant's EEO activity, the MWR Director indicated that his aim was to be as accurate and thorough as he possibly could. (Ex. 7 p.2 File 2). As found by the AJ, the mere act of the MWR Director mentioning appellant's EEO activity to the SBA may not have been sufficient to support a finding of reprisal. Given the MWR Director's active role in reporting appellant's EEO activity and in recommending that he be given the opportunity to put his negative character reference of appellant in writing, however, we find that he went beyond what was required of him as a recommending official. Further evidence of the activist role taken by the MWR Director in this matter is his call to the Army's civilian personnel office volunteering to give negative information about appellant. Added to the activist role taken by the MWR Director in his efforts to prevent appellant from being hired by the Army, are the numerous inconsistencies in his testimony. As aforementioned, the MWR Director had previously testified that he did not discuss appellant's EEO activity with the SBA. However, at the hearing he denied making this statement and indicated that it was made instead by the EEO Investigator. Given that the MWR Director signed and made several corrections to the affidavit that contained this inaccurate statement, we do not accept his disavowal of having made it as being credible. We also find inconsistent the fact that the MWR Director indicated that his written character reference of appellant was well thought out and that he was concerned with accuracy and thoroughness when he wrote this document. In addition, he erroneously reported therein that appellant's allegations of discriminatory treatment were found to be unfounded. At the time that the MWR Director completed the letter of inquiry from the Army, appellant's complaint was still at the investigatory stage. Another glaring inconsistency on record is the fact that the MWR Director went back and forth on whether he understood the meaning of the term protected EEO activity. In light of the inconsistencies in the MWR Director's testimony, we find that he was not a credible witness and that his articulated reasons for discussing appellant's EEO activity with the SBA are unworthy of credence. See Burdine supra. Therefore, we find that the MWR Director's character reference of appellant to the Army was tainted with retaliatory animus. In further support of this finding, we note that the MWR Director was overly zealous in his efforts to prevent the Army from hiring appellant. In reaching this finding, we recognize that we are reversing the findings of our previous decision, as well as that of the AJ. However, we find that neither the recommended decision of the AJ nor our previous decision went far enough in considering the inconsistent testimony of the MWR Director. As a final matter, the Commission notes that although we find the MWR Director was not a credible witness, there is nothing on record which would allow us to make a similar finding with respect to the SBA. The evidence shows that even absent the retaliatory actions of the MWR Director, appellant would not have been selected by the SBA due to her prior disciplinary record. The AJ found the SBA's testimony in this regard credible. (H.T. pp. 668-9). The evidence on record firmly supports this credibility finding of the AJ. Consequently, we will not disturb it. In summary, the Commission finds that appellant's RTR has failed to show that the Commission erred in previously finding that she was not subjected to discriminatory treatment in connection with her first complaint designated as Agency No. 89-239. However, with respect to appellant's second complaint, designated as Agency No. 89-240, the Commission finds that appellant has succeeded, through her RTR, to show that she was subjected to reprisal. Accordingly, that portion of appellant's RTR dealing with her first complaint is denied, while that portion of her request dealing with her second complaint is granted. | E.E.O.C.
Office of Federal Operations
Barbara M. Hashimoto, Appellant,
v.
H. Lawrence Garrett, III, Secretary, Department of the Navy, Agency.
Request No. 05900823
Appeal No. 01900697
Agency Nos. 89-239; 89-240
Hearing Nos. 091-88-X1918; 091-86-X1945
December 31, 1990
GRANTING AND DENIAL OF REQUEST TO REOPEN
INTRODUCTION
On June 6, 1990, Barbara M. Hashimoto (hereinafter referred to as the appellant), through her Representative, timely initiated a request to the Equal Employment Opportunity Commission (EEOC) to reopen and reconsider the decision in Barbara M. Hashimoto v. H. Lawrence Garrett, III, Secretary, Department of the Navy, EEOC Appeal No. 01900697 (May 8, 1990). EEOC Regulations provide that the Commissioners may, in their discretion, reopen and reconsider any previous decision when the party requesting reopening submits written argument or evidence which tends to establish one or more of the three criteria prescribed by 29 C.F.R. 1613.235(b).1 The appellant bases her request on 29 C.F.R. 1613.235(b) (2) (the previous decision involved an erroneous interpretation of law or regulation or misapplication of established policy), and 29 C.F.R. 1613.235(b)(3) (the decision is of such exceptional nature as to have effects beyond the actual case at hand). For the reasons set forth herein, the appellant's request is granted in part and denied in part.
ISSUE PRESENTED
The issue presented herein is whether the Commission's previous decision correctly determined that appellant was not subjected to discriminatory and retaliatory treatment in connection with the allegations raised in her complaints dated April 3, 1986 and October 4, 1988.
BACKGROUND
Appellant filed two formal EEO complaints with the agency. In the first complaint dated April 3, 1986, appellant alleged that she had been subjected to race (Japanese), and sex (female) discrimination and reprisal (prior EEO activity) when she was:
(a) suspended for five days on January 27, 1986, due to her purported refusal to obey her supervisor's written and verbal orders;
(b) notified on February 18, 1986, that her within grade increase (WGI) would be withheld due to her alleged unsatisfactory performance;
(c) issued a notice of suspension for 14 calendar days on February 18, 1986, for failing to obey orders; and
(d) notified on February 18, 1986, that her position would be abolished.2
In her second complaint dated October 21, 1988, appellant alleged that she was subjected to reprisal (prior EEO activity) when the Morale Welfare and Recreation Director (hereinafter MWR Director), gave her a negative character reference and divulged that she had engaged in EEO activity to a prospective employer from the Department of the Army (hereinafter Army), in an attempt to blackball her from obtaining gainful employment. In response to appellant's complaints, the agency issued proposed agency decisions in July of 1988 and February of 1989, proposing findings of no discrimination or reprisal. Appellant was dissatisfied with these proposed agency decisions and at her request, her complaints were forwarded to an Administrative Judge (AJ) of the EEOC for a hearing.
At the hearing stage, appellant's complaints were consolidated and the AJ rendered a recommended decision (RD) finding no discrimination or reprisal. Specifically, the AJ found that appellant had failed to show by a preponderance of the evidence that her five day suspension was taken for unlawful reasons. Similarly, the AJ found that appellant's 14 day suspension was proper. In connection with this allegation, the AJ also found that the testimony of appellant's first line supervisor (the Special Service Officer or SSO) was more credible than her testimony. Further, the AJ found that appellant experienced performance problems which justified the denial of her WGI. Additionally, the AJ found that although it was unfortunate that the MWR Director mentioned appellant's EEO activity in his contacts with the Army, his mentioning of this fact was not retaliatory in nature. Moreover, the AJ found that the Supervisory Budget Analyst, Army selecting official, credibly testified that his non-selection of appellant was based solely on her past disciplinary record. In its final agency decision (FAD) dated October 23, 1989, the agency adopted the RD of the AJ.
In its previous decision, the Commission affirmed the FAD. With respect to her first complaint, the Commission found that appellant failed to establish a prima facie case of discrimination in connection with her suspension or denial of her WGI. Further, the Commission found that appellant did not establish a prima facie case of reprisal in connection with any of the allegations she raised in her first complaint because she had not filed any prior EEO complaints. With respect to appellant's second complaint, the Commission found that appellant established a prima facie case of reprisal, but had failed to show that the reasons articulated by the agency for its actions were pretextual. Consequently, the Commission did not ascribe any unlawful motives to the actions of the MWR Director.
Appellant began her tenure with the agency on April 2, 1984, as a Budget Assistant GS-07. As a result of RIF procedures, appellant was separated from the agency on June 2, 1986. From all indications, appellant's brief tenure with the agency was a turbulent one. Besides her suspension, appellant was counseled, given a letter of caution and formally reprimanded for her conduct. The letter of caution was issued to appellant on February 5, 1985, due to her refusal to carry out the verbal and written instructions of the SSO.3 On May 21, 1985, appellant contacted an EEO Counselor regarding her title, her position description, and her performance appraisal. Although appellant indicated that her problems in these areas were not really an EEO matter, the EEO Counselor characterized her contact as a 'Potential EEO Complaint.' Both the MWR Director and the SSO were made aware of appellant's contact with the EEO office.
According to appellant, she worked on July 28, 1984, which was a Saturday. Although she was told that she could not earn overtime for that day, appellant averred that she was told that she was entitled to compensatory time. It was not until over a year later, in November of 1985, that appellant claimed credit for that day on her timecard. Appellant was told by the SSO to remove the time from her timecard and she refused. Appellant stated that she would not have attempted to recoup this time except that she was being treated badly and she wanted to express her discontent. It is also established that in November of 1985, appellant was directed by the SSO to deliver paychecks to the library and she refused. Appellant averred that she inquired why she had to deliver paychecks to the library when there was a driver who could do it faster. Appellant also averred that there were no paychecks to be delivered on the day in question.
By memorandum dated December 3, 1984, the SSO directed appellant to provide him with daily briefings in order to provide adequate supervision of funds. Appellant refused to attend these meetings, describing them, inter alia, as daily combat between her and the SSO. Appellant also testified that no other employee was required to brief the SSO on a daily basis. (Hearing Transcript (H.T.) p. 298). On cross-examination, however, appellant conceded that two other employees under the direct supervision of the SSO (a military staff person and the civilian Recreation Director), gave daily briefings to the SSO. (H.T. pp. 299-300).
It is also established that appellant was ordered on December 1, 1985, to prepare a turnover file for the Fiscal Clerk position and she failed to carry out this order. In response to this charge, appellant averred that she was never instructed4 to prepare a turnover file, but rather a Letter of Instruction. With respect to her failure to prepare the Letter of Instruction, appellant argued that she needed, but did not receive more time, clarity, and guidance from the SSO.5 After appellant was separated from the agency, she submitted an application for a Budget Clerk position with the Army. According to the Supervisory Budget Analyst (SBA) of the Army, based on a negative character reference he received from the MWR Director, he decided not to hire appellant. However, the SBA indicated that appellant's EEO activity was not a factor in his decision not to hire her. (H.T. p. 386).
The MWR Director conceded in his testimony that he told the SBA of appellant's EEO activity while she was employed at Camp Smith. However, the MWR Director testified that he made mention of appellant's EEO activity because appellant had challenged her suspension on EEO grounds and an Investigator had found that her allegations of discriminatory treatment were unfounded. (H.T. pp. 510-511). Additionally, the MWR Director testified that he informed the SBA that appellant had another complaint pending investigation. Id. It is also established that based on a recommendation of the MWR Director, the SBA sent him a notice of employment inquiry so that the (the MWR Director) could put his negative character reference of appellant in writing. (H.T. p. 512).6 Nevertheless, the MWR Director testified that appellant's prior EEO activity did not play a role in the type of reference that he provided to the Army. (H.T. p. 515).
Contrary to his testimony at the hearing, in his affidavit to the EEO Investigator, the MWR Director averred that he had not discussed appellant's EEO activity with the SBA. (Ex. 7 p. 2, File 2). When this inconsistency in his testimony was brought to his attention, the MWR Director indicated that the affidavit was written by the EEO Investigator and not by him. (H.T. pp. 509-10). Although he signed and made several corrections of his affidavit, the MWR Director averred that he simply overlooked this portion of the document. (H.T. p. 510). At the hearing a Personnel Staffing Specialist (PSS) of the Army testified that the MWR Director called her office and recommended that the Army not hire appellant. (H.T. pp. 53-4). The PSS indicated that she found the MWR Director's message to be unusual because it was unsolicited. In his testimony, the MWR Director admits that he called the Army's civilian personnel office in an attempt to locate the SBA. (H.T. p. 513). However, he denied that he told the PSS that the Army should not hire appellant. (H.T. p. 530). Rather, the MWR Director averred that he told the PSS that he had negative information regarding the appellant which he wanted to put in writing. (H.T. pp. 530-1).
In an affidavit associated with appellant's first complaint (designated as Agency No. 89-239), the MWR Director was asked by the EEO Investigator to '(p)lease give the appropriate date and circumstances by which (he) became aware of (appellant's) participation in protected EEO activity.' In response to this question, the MWR Director responded that he did not 'know what 'EEO protected activities' are...' (Ex. 12 p. 10 File 1). At the hearing, the MWR Director was asked by the AJ if he now knew what protected EEO activities were and the MWR Director indicated that he did not. (H.T. p. 543). In an earlier affidavit associated with appellant's second complaint (designated as Agency No. 89-240), however, the MWR Director averred that he 'believed in the EEO process,' which he equated with the military MASO process. According to the MWR Director, the MASO process, was a mechanism which he himself had used in the past. (Ex. 7 File 2).
In her request to reopen (RTR), appellant argues that the Commission's previous decision is flawed because it relied solely on the tripartite analytical scheme established in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973) and its progeny, while it ignored the analytical framework and standards established in more recent Supreme Court cases such as Price Waterhouse v. Hopkins, 109 S. Ct. 1775 (1989). In this respect appellant argues that she was entitled to bypass the McDonnell Douglas analytical framework with respect to her first complaint because there was direct evidence of discrimination. The direct evidence of discrimination, according to appellant, lies in the fact that both the SSO and the MWR Director allegedly submitted perjured testimony.
According to appellant, the Commission's previous decision failed to take cognizance of this perjured testimony because it engaged in a 'slavish adherence' to the testimony of the agency's officials. Further, appellant argues that the Commission's previous decision erroneously assumes that perjury can only be shown through documentary evidence or testimony from other witnesses, instead of through the internal inconsistencies and contradictions of the agency officials' testimony. In the alternative, appellant argues that if the McDonnell Douglas analytical framework was to be employed, she met her burden of showing pretext because she succeeded in showing that the testimony of the SSO and the MWR Director was unworthy of credence.
Similarly, with respect to her second complaint, appellant argues that the Commission failed to find that the reasons articulated by the agency were pretextual because it ignored the contradictions and inconsistencies in the testimony of the agency's witnesses. Appellant also characterizes her second complaint as a mixed motives case and objects that the Commission did not rely on the analytical framework established in Price Waterhouse in discussing this portion of her consolidated complaint.
In response to appellant's RTR, the agency argues that appellant fails to raise any issues of fact or law which are deserving of the Commissioners' attention. The agency also argues that appellant's RTR is a mere reiteration of the arguments previously rejected by the Commission. Accordingly, the agency urges the Commission to deny appellant's RTR.
ANALYSIS AND FINDINGS
Upon reviewing appellant's RTR, as well as the remainder of the record, the Commission finds that there is insufficient evidence for us to disturb our previous finding that appellant was not subjected to retaliatory or discriminatory treatment in connection with the personnel actions challenged in her first complaint. With respect to her second complaint, however, the Commission finds that there is sufficient evidence on record showing that appellant was subjected to retaliatory treatment. It is for these reasons, as well as for the reasons discussed below that we grant appellant's RTR in connection with her second complaint and deny her RTR in connection with her first complaint.
FIRST COMPLAINT
Although we affirm the results in our previous decision, we disagree with the finding therein that appellant did not establish a prima facie case of reprisal with respect to the allegations raised in her first complaint. The Commission has interpreted 704(a) of Title VII in a very broad manner to provide protection for employees who engaged in oppositional or participatory Title VII activity. See EEOC Compliance Manual 614.1(a). Among other things, the Commission considers the filing or threatening to file an EEO complaint to be oppositional activity,. See EEOC Compliance Manual 614.5(b) (1); Gifford v. Atchinson, Topeka and Santa Fe Railway Co., 685 F.2d 1149, 1156 n. 3 (9th Cir. 1982).
Despite appellant's failure to file an EEO complaint, when she contacted the EEO Counselor in May of 1985, she clearly meant for her contact to put the SSO on notice that she would file an EEO complaint if he did not redress what she perceived to be deficiencies in her working conditions. This is evidenced by the fact that she promptly notified the SSO of her contact with the EEO Counselor. Moreover, appellant's contact with the EEO Counselor in May of 1985 was brought to the attention of the MWR Director who was given a copy of the report written by the EEO Counselor following his meeting with appellant. The EEO Counselor identified this report as appellant's 'Potential EEO Complaint.' Given these facts, as well as the close proximity of time between appellant's EEO activity and the issuance of her suspension notice in December of 1985, the Commission finds that appellant established an initial prima facie case of reprisal in connection with the allegations raised in her first complaint. See Mitchell v. Baldridge, 759 F.2d 80 (D.C. Cir. 1985).
With respect to the remaining bases of the first complaint, we concur with our previous finding that there is very little evidence that would support a finding that appellant established an initial prima facie case of discrimination. Also, for the reasons discussed infra, we disagree with appellant that there is direct evidence of discrimination in her first complaint. However, in light of the fact that this first complaint was subjected to an EEO hearing, and the agency articulated reasons for its challenged actions, we find that, rather than dispose of this complaint on the grounds that appellant failed to establish a prima facie case of discrimination, the Commission should have proceeded to determine whether the reasons articulated by the agency were legitimate or a mere pretext for discrimination. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711 (1983).
With respect to the allegations raised in her first complaint, the agency fully established that appellant's five day suspension was proper because: (1) she disobeyed the SSO and refused to deliver paychecks to the library, (2) she refused to provide daily briefings to the SSO; and (3) she refused to amend her timecard. Similarly, the agency argued that appellant's 14 day suspension was proper because she refused to comply with the SSO's order to prepare a turnover file. Further, the agency presented evidence to show that the denial of appellant's WGI was proper because appellant's performance was deficient in that she failed to (1) submit her reports in a timely manner; (2) conduct quarterly inventories; and (3) effectively train managers.
Appellant attempted to show the reasons articulated by the agency for its actions to be pretextual by, inter alia, challenging the need, usefulness, or legality of the SSO's action. The AJ found, however, that most of appellant's testimony in this regard was not credible and found the opposing testimony of the SSO to be more worthy of credence. Although appellant argued on appeal that the AJ's findings are not deserving of deferential treatment on review, we note that it is the Commission's policy to defer to the credibility findings of the AJ absent evidence of clear error. See Ronald F. King v. Department of Justice, EEOC Request No. 05900198 (August 20, 1990). We find no evidence of record that would cause us to reverse the credibility findings made by the AJ with respect to appellant's first complaint. Consequently, we find that appellant failed to show by a preponderance of the evidence that the reasons articulated by the agency for the challenged actions in her first complaint were pretextual.
SECOND COMPLAINT
As in her first complaint, appellant argued that there was direct evidence of discrimination in her second complaint which triggered the burdens of proof established in Price Waterhouse. In making this argument, appellant appears to equate untruthfulness with direct evidence of discrimination. However, the Commission does not consider untruthfulness, even of a repeated nature, to be tantamount to direct evidence of discrimination. Untruthfulness goes to the question of credibility and the showing of pretext. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). Although we find that the analytical scheme articulated in Price Waterhouse is not an appropriate paradigm to analyze appellant's second complaint, we find that under the traditional tripartite test established by McDonnell Douglas and its progeny, appellant has succeeded in showing that the negative character reference given by the MWR Director to the Army was retaliatory in nature. In the discussion that follows, we will examine the evidence on record which supports our finding of reprisal.
In keeping with the ruling in Aikens, as well as our previous findings that appellant established prima facie case of reprisal in connection with her second complaint, we will focus our discussion on whether the reasons articulated by the MWR Director for his action are legitimate, or merely a pretext for reprisal. There is some inconsistency in the MWR Director's testimony regarding his reference to appellant's EEO activity in his communications with the SBA. In his affidavit, the MWR Director indicated that he made no mention of appellant's EEO activity to the SBA. At the EEO hearing, however, the NWR Director concedes that he did discuss appellant's EEO activity with the SBA.
Although he did not give an express reason as to why he made mention of this fact to the SBA, his response suggests that he discussed this matter because appellant had challenged the agency's disciplinary actions in the EEO forum, but an investigation had purportedly found that her allegations of discriminatory treatment were unfounded. (H.T. p. 511). With respect to his written character reference, in which mention was also made of appellant's EEO activity, the MWR Director indicated that his aim was to be as accurate and thorough as he possibly could. (Ex. 7 p.2 File 2).
As found by the AJ, the mere act of the MWR Director mentioning appellant's EEO activity to the SBA may not have been sufficient to support a finding of reprisal. Given the MWR Director's active role in reporting appellant's EEO activity and in recommending that he be given the opportunity to put his negative character reference of appellant in writing, however, we find that he went beyond what was required of him as a recommending official. Further evidence of the activist role taken by the MWR Director in this matter is his call to the Army's civilian personnel office volunteering to give negative information about appellant.
Added to the activist role taken by the MWR Director in his efforts to prevent appellant from being hired by the Army, are the numerous inconsistencies in his testimony. As aforementioned, the MWR Director had previously testified that he did not discuss appellant's EEO activity with the SBA. However, at the hearing he denied making this statement and indicated that it was made instead by the EEO Investigator. Given that the MWR Director signed and made several corrections to the affidavit that contained this inaccurate statement, we do not accept his disavowal of having made it as being credible. We also find inconsistent the fact that the MWR Director indicated that his written character reference of appellant was well thought out and that he was concerned with accuracy and thoroughness when he wrote this document. In addition, he erroneously reported therein that appellant's allegations of discriminatory treatment were found to be unfounded. At the time that the MWR Director completed the letter of inquiry from the Army, appellant's complaint was still at the investigatory stage. Another glaring inconsistency on record is the fact that the MWR Director went back and forth on whether he understood the meaning of the term protected EEO activity.
In light of the inconsistencies in the MWR Director's testimony, we find that he was not a credible witness and that his articulated reasons for discussing appellant's EEO activity with the SBA are unworthy of credence. See Burdine supra. Therefore, we find that the MWR Director's character reference of appellant to the Army was tainted with retaliatory animus. In further support of this finding, we note that the MWR Director was overly zealous in his efforts to prevent the Army from hiring appellant. In reaching this finding, we recognize that we are reversing the findings of our previous decision, as well as that of the AJ. However, we find that neither the recommended decision of the AJ nor our previous decision went far enough in considering the inconsistent testimony of the MWR Director.
As a final matter, the Commission notes that although we find the MWR Director was not a credible witness, there is nothing on record which would allow us to make a similar finding with respect to the SBA. The evidence shows that even absent the retaliatory actions of the MWR Director, appellant would not have been selected by the SBA due to her prior disciplinary record. The AJ found the SBA's testimony in this regard credible. (H.T. pp. 668-9). The evidence on record firmly supports this credibility finding of the AJ. Consequently, we will not disturb it.
In summary, the Commission finds that appellant's RTR has failed to show that the Commission erred in previously finding that she was not subjected to discriminatory treatment in connection with her first complaint designated as Agency No. 89-239. However, with respect to appellant's second complaint, designated as Agency No. 89-240, the Commission finds that appellant has succeeded, through her RTR, to show that she was subjected to reprisal. Accordingly, that portion of appellant's RTR dealing with her first complaint is denied, while that portion of her request dealing with her second complaint is granted.
CONCLUSION
After a review of appellant's request to reopen, the agency's response thereto, the previous decision, and the entire record, the Commission finds that appellant's request fails to meet the criteria of 29 C.F.R. 1613.235(b) with respect to her first complaint designated as Agency No. 89-239, but that it meets the criteria of 29 C.F.R. 1613.235(b) with respect to her second complaint, designated as Agency No. 89-240. Accordingly, it is the decision of the Commission to grant appellant's request with respect to her second complaint, but to deny her request with respect to her first complaint. In keeping with this finding, the Commission also reverses those portions of the previous decision and the FAD which are inconsistent with the findings herein. This decision constitutes the final decision of the Commission in this matter. There is no further right of administrative appeal from the decision of the Commission on this request to reopen. In order to remedy its retaliatory actions against appellant, the agency shall take the actions ordered below.
ORDER
1. Accordingly, that portion of the agency's decision which found that appellant was not subjected to reprisal in connection with her second complaint designated as Agency No. 89-240, is hereby REVERSED. Effective immediately, the agency shall cease and desist its practices of notifying prospective employers of its employees' or former employees' participation in protected EEO activity.
Moreover, the agency is ordered to remove from appellant's personnel files, the negative character reference given by the MWR Director to the Army, which is dated August 10, 1988.
Further, the agency is ordered to provide EEO training to the MWR Director and to all of the Supervisory staff of the Morale Welfare and Recreation Department of Camp Smith within 180 calendar days of its receipt of this decision.
2. The agency is directed to post at its facility at Camp Smith copies of the attached notice. Copies of the notice, after being signed by the agency's duly authorized representative, shall be posted by the agency within thirty (30) days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees and applicants for employment are customarily posted. The agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice(s) is to be submitted to the Compliance Officer at the address referred to in the Implementation paragraph within ten (10) calendar days after the expiration of the posting period.
3. If appellant has been represented by an attorney as defined by 29 C.F.R. 1613.271(d) (1) (iii), appellant shall be awarded attorney's fees under 29 C.F.R. 1613.271(d). The attorney shall submit to the agency, not the Equal Employment Opportunity Commission, Office of Review and Appeals, within twenty (20) days of the decision becoming final, the documentation required by 29 C.F.R. 1613.271(d) (2) only in relation to the services he rendered in connection with appellant's second complaint, designated by Agency No. 89-240. The agency shall process this claim within the time frames set forth in 1613.271(d)(2).
4. The agency is further ORDERED to submit a report of compliance, as provided below. The report shall include supporting documentation that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION DECISION
Under EEOC Regulations, compliance with the Commission's corrective action is mandatory. The agency must submit its final report of compliance to this Commission within thirty (30) calendar days of completing the corrective action required by this decision. See 29 C.F.R. 1613.237(b), (c) (1989). The agency's report must be forwarded to the Compliance Officer, Office of Review and Appeals, P.O. Box 19848, Washington, D.C. 20036. A copy of the report must be sent to the appellant.
STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST TO REOPEN
RIGHT TO FILE A CIVIL ACTION
You are hereby notified that there is no further right of appeal from a decision of the Commission on a Request to Reopen. You have the right to file a civil action in an appropriate United States District Court WITHIN THIRTY (30) DAYS of the date that you receive this decision. As to any claim based on the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a), you MAY have up to six years after the right of action first accrued in which to file a civil action. See Lehman v. Nakshian, 453 U.S. 156 (1981); 29 U.S.C. 633a(f) and 28 U.S.C. 2401(a). If you file a civil action, YOU MUST NAME THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD AS THE DEFENDANT IN THE COMPLAINT. Agency or department means the national organization, and not the local office, facility or department in which you might work. DO NOT JUST NAME THE AGENCY OR DEPARTMENT. You must also state the title of the official agency head or department head. Failure to provide the NAME AND OFFICIAL TITLE of the agency head or department head may result in the dismissal of your case. Fed. R. Civ. P. 25(d)(2).
RIGHT TO REQUEST COUNSEL (R990)
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 THIRTY (30) DAYS from the date you receive the Commission's decision.
FOR THE COMMISSION:
Frances M. Hart
Executive Officer
Executive Secretariat
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Washington, D.C. 20507 NOTICE TO EMPLOYEES POSTED BY ORDER OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION An Agency of the United States Government
This Notice is posted pursuant to an order dated by the United States Equal Employment Opportunity Commission which found that a violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. had occurred at this facility.
Federal law requires that there be no discrimination against any employee or applicant for employment because of the person's RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE or PHYSICAL or MENTAL HANDICAP with respect to hiring, firing, promotion, compensation, or other terms, conditions or privileges of employment.
The Department of the Navy, will comply with such Federal law and will not take action against individuals because they have exercised their rights under the law.
The Department of the Navy will comply with the corrective action ordered by the Commission. The Department of the Navy will ensure that officials responsible for personnel decisions and terms and conditions of employment will abide by the requirements of all Federal equal employment opportunity laws.
The Department of the Navy, will not in any manner restrain, interfere, coerce, or retaliate against any individual who exercises his or her right to oppose practices made unlawful by, or who participates in proceedings pursuant to, Federal equal employment opportunity law.
Date Posted: Posting Expires: 29 C.F.R. Part 1613
Footnotes
The Vice-Chairman of the Commission has recused herself from deciding this matter.
As noted in our previous decision, since the abolishment of appellant's position was due to a reduction in force (RIF) action, allegation (d) supra fell within the jurisdiction of the Merit Systems Protection Board (MSPB). Consequently, the Commission will not render a decision on allegation (d). Further, we note that the MSPB has already rendered a decision on this allegation.
The letter of caution noted that appellant was insubordinate because she had failed to comply with the SSO's written and verbal order to meet with him daily and to respond to an Auditor's Report. Ex. 19.
The memorandum directing appellant to prepare the turnover file indicated that it should be prepared as a 'Letter of Instruction.' (Ex. 1, File 1).
The memorandum directing appellant to prepare the turnover file also identified two coworkers who could assist her in completing this task. The memorandum also gave appellant a month to complete the turnover file. (Ex. 1, File 1).
As it turned out, the MWR Director was mistaken in his belief that appellant's first complaint had been fully adjudicated. When the MWR Director spoke to the SBA in August of 1988, appellant's first complaint was still in the investigatory stage. | [
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211 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a51315.txt | 01a51315.txt | TXT | text/plain | 33,171 | Ida M. Amos v. National Transportation Safety Board 01A51315 February 16, 2006 . Ida M. Amos, Complainant, v. Marc V. Rosenker, Acting Chairman, National Transportation Safety Board, Agency. | February 16, 2006 | Appeal Number: 01A51315
Complaint Allegations:
in her complaint. The agency noted that despite complainant's lack of cooperation, the complaint was accepted, assigned to an EEO Counselor, formally filed, amended twice, and an investigation was completed. On appeal, complainant maintains that management officials have a preference for hiring and promoting non-Blacks, especially White employees. Complainant states that it has taken her twelve years to advance to the GS-9 grade level and that White employees advance in their careers at a faster rate despite the fact that many White employees have less education, experience, and training. Complainant contends that non-Blacks benefit more often from preselections, detail assignments, temporary assignments, accretion of duties promotions, and preferential treatment. Complainant states that the agency uses detail or temporary assignments to give the non-Black employee an unfair advantage by preselecting the individual for the permanent job promotion. Complainant states that in cases where the non-Black is not qualified, has less experience, or does not have adequate time-in-grade, the non-Black employee will be placed in a detail or temporary assignment for a period of time until the individual can meet the necessary qualifications for the position. With regard to claim 2, complainant maintains that the selectee was less qualified, had less time-in-grade, and fewer years of service and experience with the agency. Complainant states that she previously served in the position for two years. Complainant argues that disparate treatment is evident by the fact that the selectee advanced to a GS-9 level in three years, yet it has taken her twelve years to advance to a GS-9 level. With respect to claim 3, complainant states that she was informed by a coworker that despite his statement to the contrary, the official who disapproved her request for a temporary detail, the Deputy Director of Regional Operations in the Office of Aviation Safety, was in fact aware of her prior EEO activity. As for claim 4, complainant contends that other employees in the Office of Highway Safety were approved funding for training that far exceeded the limitation placed on her. Complainant states that although the agency stated that no one from the Office of Highway Safety attended the BIG conference in Fiscal Year 2004, she was the only individual from the Office of Highway Safety who sought to attend the conference. With regard to claim 5, complainant argues that she was consistently rated Outstanding before she filed a class action on May 4, 2000, but that she has not received another Outstanding rating despite the fact her work performance has not changed. With regard to claim 8, complainant contends that she did not learn of this incident until October 3, 2002, and that therefore her contact of an EEO Counselor was timely. With regard to claim 16, complainant claims that she was treated differently than a White coworker when the Deputy Director instructed a coworker to assist her with getting her fingerprinting done, as no such instruction was given with regard to the fingerprinting of a White coworker for a background investigation. In response, the agency asserts with regard to claim 1, complainant failed to offer any evidence that her qualifications for the position at issue were observably superior to those of the selectee. As for claim 2, the agency states that the selecting official noted that while both the selectee and complainant were technically competent, the selectee had demonstrated the ability to work effectively and efficiently with the individuals and offices she would need to interact with as the Administrative Officer, while maintaining a friendly, polite and agreeable demeanor. According to the agency, the selecting official found complainant to be short and abrupt with staff at times and, in his experience, complainant had encountered difficulty in dealing with staff in the past. The agency notes that complainant's first and second line supervisors agreed with this assessment. The agency further states that even if preselection occurred, it would be insufficient to establish an inference of pretext. With regard to claim 3, the agency asserts that complainant failed to demonstrate that the agency advertised a detail for which it was soliciting applicants or that the agency granted anyone else a detail for which she requested consideration. With respect to claim 4, the agency asserts that the courses submitted by complainant did not bear a substantial enough relation to her job duties and were significantly more costly than the budget allowed. The agency states that no other administrative employees in the Office of Highway Safety were approved for training that was even close to the cost of the two training sessions sought by complainant. The agency notes that the cost for the 2004 BIG training was $2,023 and the five day MBA training was $4,583. According to the agency, none of the Fiscal Year 2004 approved estimated total expenditures for administrative personnel in the Office of Highway Safety exceeded $1,100. The agency further notes that it has been funding college level courses for complainant since 1991, and that complainant attended the BIG conference in 2000, 2001 and 2002. As for claim 5, the agency asserts that complainant offers only vague conclusions and general statements in support of her belief that she deserved an Outstanding rating. The agency argues that complainant failed to demonstrate how her Fiscal Year 2003 performance evaluation was adversely affected given that she received the same performance rating as in the two prior years. With regard to claim 6, the agency asserts that complainant has failed to state an independent claim of discrimination as she instead raises a concern about the processing of her complaint. The agency further asserts that complainant has not demonstrated how the alleged actions had a material effect on the processing of her complaint. According to the agency, the EEO Director denies she made any inappropriate comments to complainant or tried to impede her exercise of her rights under Title VII. The agency states that any delays were attributable to either a lack of cooperation from complainant and administrative difficulty, due to the complexity of, and frequent amendments to, the complaint. In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII case claiming discrimination is a three-step process as set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-803 (1973), and its progeny. See Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). For complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, complainant must prove, by a preponderance of the evidence, that the agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). This order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900150 (June 28, 1990). For purposes of analysis, we will assume, arguendo, that complainant established a prima facie case of discrimination on the bases of race, color and reprisal. Next, we shall consider whether the agency articulated legitimate, nondiscriminatory reasons for its actions. In this case, the Commission finds that the agency has articulated legitimate, nondiscriminatory reasons for its actions. Consequently, we will dispense with an examination of whether complainant established a prima facie case with respect to the above cited issues and review below the reasons articulated by the agency for its actions as well as complainant's effort to prove pretext. Claim 1 The Special Counsel to the Chairman stated that complainant was not selected for the Administrative Officer position because the selectee had performed successfully for the Chairman during the past year and that she was experienced in meeting budget responsibilities, performing duties required for notation items, creating and /or maintaining Board meeting books, and working with other offices, in particular the Office of Safety Recommendations. We find that the agency articulated legitimate, nondiscriminatory reasons for its decision not to select complainant. We find that complainant failed to refute the agency's stated reasons for her non-selection for the position at issue. Complainant has not shown that her qualifications for the position at issue were so superior to those of the selectee as to warrant a finding that the agency's stated reasons are pretextual. See Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). The Commission finds that it was not unreasonable for the agency to determine that the selectee's experience was more applicable than complainant's experience to the relevant position. Complainant contends that the selectee was preselected for the position when she was placed in a detail assignment in the Chairman's Office. Complainant argues that the selective was placed in the detail for the sole purpose of advancing her career and promoting her to a higher grade level. We observe that even if preselection occurred, complainant has not shown that any such preselection was motivated by discriminatory animus. Goostree v. Tennessee, 796 F.2d 854, 861 (6th Cir. 1986). We find that complainant has not shown, by a preponderance of the evidence, that the agency's stated reasons for her nonselection were pretext intended to mask discriminatory intent. Claim 2 With regard to claim 2, the selecting official stated that complainant's interpersonal skills were lacking in comparison with the selectee. Complainant's second-level supervisor noted that complainant was often abrupt and critical of staff mistakes and questions. We find that the agency articulated a legitimate, nondiscriminatory reason for complainant's nonselection for the position of Administrative Officer in the Office of Highway Safety. Complainant argues that she previously served in the relevant position for two years and that the selectee was less qualified, had less time- in-grade, and fewer years of service and experience with the agency. We find that complainant has not refuted the agency's position that the selectee has superior interpersonal skills. We find that complainant has not established that the reason for her nonselection was pretext intended to mask discriminatory intent. Claim 3 As for claim 3, the agency stated complainant's request for a detail to the Office of Aviation Safety was denied because there was no position for which the agency was seeking applicants. The agency stated that a review showed that the workload would only support a two to three week detail, not the 60 to 90 days required before a detail could be authorized. We find that the agency articulated legitimate, nondiscriminatory reasons for not detailing complainant to the Office of Aviation Safety. Complainant claims that the official who denied her request for a detail was aware of her previous EEO activity. However, complainant has not presented any persuasive argument to refute the agency's position that the available workload did not justify the creation of a detail. Claim 4 With regard to claim 4, the Office Director stated that the Office of Highway Safety had a limited training budget and that the BIG conference was not included in the training plan for several reasons, primarily cost. With regard to the MBA training course, complainant's first-line supervisor stated that he denied complainant's request based on budget restraints. We find that the agency articulated legitimate, nondiscriminatory reasons for its denial of these training requests. Complainant contends that other employees in the Office of Highway Safety were approved funding for training that far exceeded the limitation placed on her. However, complainant has not refuted the agency's position that her training requests were clearly more costly than the training provided to other administrative employees. The agency stated that estimated total training expenditures for administrative personnel in the Office of Highway Safety was not above $1,100, yet complainant's training requests would have cost $2,023 and $4,583, respectively. We find that complainant has not established that she was discriminated against when the agency denied her training requests. Claim 5 As for claim 5, the agency stated that each of the five separate categories in complainant's performance evaluation was rated as Excellent and that therefore complainant received an overall rating of Excellent. We find that the agency articulated legitimate, nondiscriminatory reasons for complainant's overall rating of Excellent. Complainant argues that her performance has not changed from Fiscal Years 1995-2000 when she received overall performance ratings of Outstanding. However, we find that complainant has not persuasively refuted the agency's position that her performance merited an overall rating of Excellent. We find that complainant has not established that she was discriminated against when she was issued a performance rating of Excellent. Claim 6 The EEO Director denied that she made inappropriate comments to complainant and that she delayed assignment of an EEO Counselor and later the assignment of an EEO Investigator. The EEO Director stated that she attempted to obtain necessary information from complainant, but that complainant did not cooperate and would not provide information on the issues in her complaint. The incidents in claim 6 address the processing of the instant complaint. The Commission finds that the agency properly argues on appeal that claim 6 does not state a claim and is properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1). To the extent that complainant is arguing that she was harassed by the EEO Director, we find that complainant has failed to show that any action by the EEO Director render her aggrieved, was sufficiently severe so as to constitute harassment, or was in any way motivated by discrimination. Furthermore, we find no evidence of improper processing of the complaint that in any way negatively impacted the processing of the instant complaint. Dismissed Claims With regard to claim 7, it appears that complainant may not have intended to consider this a claim separate from the other claims in the complaint. To the extent that complainant intended this claim to be a separate claim, we find that it is too vague to state a separate claim and that it was properly dismissed for failure to state a claim. With respect to that portion of claim 9 that involves the EEO Director withholding information regarding a previously filed complaint, we find that the agency properly dismissed this issue pursuant to 29 C.F.R. §1614.107(a)(8) on the grounds that it alleges dissatisfaction with the manner in which a previously filed EEO complaint was processed. With regard to claims 10 - 15, we observe that the alleged incidents occurred in June 2002, June 6, 2002, July 2002, early 2001, November 2000, the middle part of 2002, and July 2002, respectively. Complainant admits that she did not initiate contact with an EEO Counselor until November 4, 2002, after the expiration of the 45-day limitation period with regard to each of the alleged incidents. The Commission finds that complainant should have reasonably suspected discrimination at the time of the incidents. Complainant has not submitted adequate justification for her failure to initiate contact with an EEO Counselor in a timely manner. Therefore, we find that claims 10 - 15 were properly dismissed for untimely EEO Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2).<3> The Commission finds that claim 8 was properly dismissed for failure to state a claim. Complainant was not harmed by the alleged comment to a coworker outside of complainant's presence.<4> Regarding claim 16, we find that complainant was not harmed with regard to a term, condition or privilege of her employment when the Deputy Director instructed a coworker to assist complainant in getting fingerprints completed pursuant to a background investigation. Therefore, we find that claim 16 was properly dismissed on the grounds of failure to state a claim pursuant to 29 C.F.R. §1614.107(a)(1). Furthermore, claims 8 and 16 are insufficiently severe or pervasive to state a claim of harassment. CONCLUSION
Case Facts:
Complainant initiated contact with an EEO Counselor on November
4, 2002. Complainant filed a formal EEO complaint on January 23,
2003, and subsequent amendments to the complaint in which she claimed
that the agency discriminated against her on the bases of her race
(African-American), color (black), and in reprisal for her previous EEO
activity under Title VII<1> when:
1. Complainant was not selected for the position of Administrative
Officer, GS-341-09, in the Office of the Chairman (vacancy announcement
02-010).
2. Complainant was not selected for the position of Administrative
Officer, GS-341-09, in the Office of Highway Safety (vacancy announcement
03-005).
3. Complainant was not granted a detail assignment within the Office of
Aviation Safety, South Central (Dallas) Regional Office.
4. Complainant was denied funding for attendance at the 2004 Blacks
In Government (BIG) Conference and she was denied funding to attend a
five-day MBA training course at the American Management Association.
5. Complainant's overall performance evaluation in 2003 was adversely
affected.
6. Complainant was discriminated against on the basis of reprisal when
the EEO Director subjected her to inappropriate comments and delayed
processing her EEO complaint.
7. The agency failed to provide career advancement opportunities and
favorable treatment comparable to non-Black employees, especially White
employees.
8. On June 21, 2002, a coworker had been advised by management to kick
complainant out of her office.
9. The agency engaged in reprisal when it interfered with the EEO
process and modified the EEO Counselor's report after it was submitted to
complainant; removed pertinent information from the report; and provided
false information to the EEO Investigator.
10. In June 2002, complainant was omitted from training for the new
Travel Manager program that was implemented by the Office of the Chief
Financial Officer.
11. Complainant was omitted from training on the new Federal Financial
System that was conducted on June 6, 2002.
12. In July 2002, while in Denver, Colorado to attend group training
on the new payroll system, complainant was separated from the group and
sent to be trained on the Federal Financial System.
13. The Director had a conversation with a coworker regarding
complainant's participation in the EEO process during which the
coworker told the Director that he had told complainant she is being
asked to submit to a background investigation because the Director was
trying to get rid of all of the Blacks in the Office of Highway Safety.
The Director allegedly responded why the hell did you tell her that,
she's already trying to hang my ass?
14. Complainant was denied the use of an agency pager, cellular phone,
and laptop computer.
15. Complainant stated that she is the only Regional Administrative
Assistant who does not have direct access to her monthly purchase card
statement.
16. On or about November 4, 2002, the Deputy Director asked a coworker to
assist complainant in getting fingerprints completed that were required
in connection with a background investigation.
The record reveals that complainant has been employed by the agency as
an Administrative Assistant, GS-303-09, for the Office of Highway Safety
in the Central Regional Office in Arlington, Texas. Complainant has
also worked in the Central Regional Office as a Regional Staff Assistant
and Secretary.
By decision dated March 3, 2003, the agency issued a partial dismissal
wherein it dismissed claims 7-16 of the complaint. Claims 7-8 and 16
were dismissed pursuant to 29 C.F.R. §1614.107(a)(1) on the grounds of
failure to state a claim. Claims 8 and 10-15 were dismissed pursuant to
29 C.F.R. §1614.107(a)(2) on the grounds of failure to initiate contact
with an EEO Counselor in a timely manner. The agency found that a portion
of claim 9 alleges that the EEO Director withheld information from a
previously filed complaint. The agency dismissed this portion of claim
9 pursuant to 29 C.F.R. §1614.107(a)(8) on the grounds that complainant
claimed dissatisfaction with the manner in which her previously filed
EEO complaint was processed. The remaining claims of the complaint were
accepted for investigation.<2>
With regard to claim 7, the agency determined that complainant did not
cite any specific instance where she was personally affected by the
alleged discrimination, or suffered a personal loss or harm with respect
to the terms, conditions or privileges of her employment. As for claim
8, the agency determined that the alleged statement was made on June 21,
2002, and that therefore complainant's EEO contact on November 4, 2002,
was after the expiration of the 45-day limitation period. The agency
also determined that complainant was not harmed with respect to a
term, condition or privilege of her employment. The agency noted that
complainant did not claim that she was actually moved out of her office,
but rather that she was injured solely by the alleged conversation.
With respect to claim 10, the agency noted that complainant stated
that she was omitted from the scheduled group training in June 2002.
The agency determined that complainant's EEO contact on November 4, 2002,
was after the expiration of the 45-day limitation period. With regard
to claim 11, the agency stated that training on the new Federal Financial
System was conducted on June 6, 2002, and that complainant's EEO contact
was not within the 45-day limitation period. As for claim 12, the agency
noted that complainant was allegedly separated from the group in July
2002, more than 45 days before complainant initiated contact with an EEO
Counselor. The agency further noted in light of the fact that complainant
was sent to be trained on the Federal Financial System, that she in fact
received the training that she alleged she was discriminatorily denied.
With regard to claim 13, the agency noted that complainant told the
EEO Counselor that she was informed about the alleged conversation in
early 2001. The agency concluded that complainant's contact of an EEO
Counselor on November 4, 2002, was after the expiration of the 45-day
limitation period.
With respect to claim 14, the agency determined that complainant's
request for a pager was denied in November 2000; her request for a laptop
computer was denied in the middle part of 2002; and that she did not
make a specific request for a cell phone. The agency determined that
complainant did not request permission to use these items and has not
been denied use of these items during the 45-day period preceding her EEO
contact. As for claim 15, the agency noted that complainant stated that
in July 2002, she learned that the aviation staff assistants have direct
access to their individual monthly purchase card statements. The agency
concluded that complainant was aware of the alleged discrimination at
least 90 calendar days before she initiated contact with an EEO Counselor.
With regard to claim 16, the agency determined that complainant failed
to show that she suffered a personal harm or loss with respect to a term,
condition or privilege of her employment for which there is a remedy.
Subsequent to the completion of the agency investigation, the agency
notified complainant of her right to request either a hearing and
decision by an EEOC Administrative Judge or an immediate final action
by the agency. Complainant requested a hearing. On August 20, 2004,
complainant submitted a motion to withdraw her request for a hearing
and requested a final action. The AJ subsequently entered an Order of
Dismissal returning the case to the agency for issuance of a final action.
In a final action dated November 10, 2004, the agency determined that
complainant had not been discriminated against under the alleged bases.
With regard to claim 1, the agency noted that the Special Counsel
to the Chairman stated that complainant lacked experience in the
following areas: being directly responsible for making speaking or
travel arrangements; initiating professional correspondence (including
follow-up correspondence); preparing Board meeting books; and performing
duties regarding notation items. According to the Special Counsel, the
selectee had experience with making travel arrangements and generating and
answering correspondence. The Special Counsel stated that the selectee
performed successfully for the Chairman during the past year and that she
was experienced in meeting budget responsibilities, performing duties
required for notation items, creating and/or maintaining Board meeting
books, and working with other offices (in particular the Office of
Safety Recommendations). The agency determined that complainant failed
to present evidence that her qualifications were so plainly superior to
that of the selectee as to require a finding of pretext. With respect
to claim 2, the agency determined that the selectee's interpersonal
skills were greater than those of complainant. The agency noted that
complainant's second line supervisor stated that complainant was often
abrupt and critical of staff mistakes and questions. As for claim 3,
the agency noted that there was no announcement for a detail position
to the Office of Aviation Safety's South Central Regional Office.
According to the agency, a detail was not authorized based on there
being insufficient workload.
With regard to claim 4, the agency determined that limitations imposed by
budgetary constraints necessitated the denial of funding for complainant's
attendance at the relevant training sessions. The agency stated that
the costs of the training sessions far exceeded the amounts available
for each employee. With regard to claim 5, the agency determined that
complainant's overall performance evaluation for 2003, was not adversely
affected as complainant received the same Excellent rating both
before the alleged EEO complaint activity and afterwards. With regard
to complainant's claim that she had received Outstanding ratings for
1995 to 2000, the agency stated that these ratings were not close enough
in time to allow the formation of a nexus between EEO complaint activity
in 2000, and a performance evaluation of Excellent in 2003.
As for claim 6, the agency noted that the EEO Director denied making
inappropriate comments to complainant and denied delaying assignment
of an EEO Counselor and an EEO Investigator. According to the EEO
Director, she attempted to obtain necessary information from complainant
in order to initiate the process of procuring services of a contract EEO
Counselor, but that complainant did not cooperate and would not provide
information on the issues in her complaint. The agency noted that
despite complainant's lack of cooperation, the complaint was accepted,
assigned to an EEO Counselor, formally filed, amended twice, and an
investigation was completed.
On appeal, complainant maintains that management officials have a
preference for hiring and promoting non-Blacks, especially White
employees. Complainant states that it has taken her twelve years to
advance to the GS-9 grade level and that White employees advance in their
careers at a faster rate despite the fact that many White employees have
less education, experience, and training. Complainant contends that
non-Blacks benefit more often from preselections, detail assignments,
temporary assignments, accretion of duties promotions, and preferential
treatment.
Complainant states that the agency uses detail or temporary assignments
to give the non-Black employee an unfair advantage by preselecting the
individual for the permanent job promotion. Complainant states that
in cases where the non-Black is not qualified, has less experience,
or does not have adequate time-in-grade, the non-Black employee will be
placed in a detail or temporary assignment for a period of time until
the individual can meet the necessary qualifications for the position.
With regard to claim 2, complainant maintains that the selectee was
less qualified, had less time-in-grade, and fewer years of service and
experience with the agency. Complainant states that she previously
served in the position for two years. Complainant argues that disparate
treatment is evident by the fact that the selectee advanced to a GS-9
level in three years, yet it has taken her twelve years to advance to
a GS-9 level. With respect to claim 3, complainant states that she
was informed by a coworker that despite his statement to the contrary,
the official who disapproved her request for a temporary detail, the
Deputy Director of Regional Operations in the Office of Aviation Safety,
was in fact aware of her prior EEO activity.
As for claim 4, complainant contends that other employees in the Office
of Highway Safety were approved funding for training that far exceeded
the limitation placed on her. Complainant states that although the
agency stated that no one from the Office of Highway Safety attended
the BIG conference in Fiscal Year 2004, she was the only individual
from the Office of Highway Safety who sought to attend the conference.
With regard to claim 5, complainant argues that she was consistently
rated Outstanding before she filed a class action on May 4, 2000,
but that she has not received another Outstanding rating despite the
fact her work performance has not changed. With regard to claim 8,
complainant contends that she did not learn of this incident until
October 3, 2002, and that therefore her contact of an EEO Counselor
was timely. With regard to claim 16, complainant claims that she
was treated differently than a White coworker when the Deputy Director
instructed a coworker to assist her with getting her fingerprinting done,
as no such instruction was given with regard to the fingerprinting of
a White coworker for a background investigation.
In response, the agency asserts with regard to claim 1, complainant
failed to offer any evidence that her qualifications for the position at
issue were observably superior to those of the selectee. As for claim
2, the agency states that the selecting official noted that while both
the selectee and complainant were technically competent, the selectee
had demonstrated the ability to work effectively and efficiently
with the individuals and offices she would need to interact with as
the Administrative Officer, while maintaining a friendly, polite and
agreeable demeanor. According to the agency, the selecting official
found complainant to be short and abrupt with staff at times and, in
his experience, complainant had encountered difficulty in dealing with
staff in the past. The agency notes that complainant's first and second
line supervisors agreed with this assessment.
The agency further states that even if preselection occurred, it would
be insufficient to establish an inference of pretext. With regard to
claim 3, the agency asserts that complainant failed to demonstrate that
the agency advertised a detail for which it was soliciting applicants
or that the agency granted anyone else a detail for which she requested
consideration.
With respect to claim 4, the agency asserts that the courses submitted
by complainant did not bear a substantial enough relation to her job
duties and were significantly more costly than the budget allowed.
The agency states that no other administrative employees in the Office
of Highway Safety were approved for training that was even close to the
cost of the two training sessions sought by complainant. The agency notes
that the cost for the 2004 BIG training was $2,023 and the five day MBA
training was $4,583. According to the agency, none of the Fiscal Year
2004 approved estimated total expenditures for administrative personnel
in the Office of Highway Safety exceeded $1,100. The agency further notes
that it has been funding college level courses for complainant since 1991,
and that complainant attended the BIG conference in 2000, 2001 and 2002.
As for claim 5, the agency asserts that complainant offers only vague
conclusions and general statements in support of her belief that she
deserved an Outstanding rating. The agency argues that complainant
failed to demonstrate how her Fiscal Year 2003 performance evaluation
was adversely affected given that she received the same performance
rating as in the two prior years. With regard to claim 6, the agency
asserts that complainant has failed to state an independent claim of
discrimination as she instead raises a concern about the processing
of her complaint. The agency further asserts that complainant has
not demonstrated how the alleged actions had a material effect on the
processing of her complaint. According to the agency, the EEO Director
denies she made any inappropriate comments to complainant or tried to
impede her exercise of her rights under Title VII. The agency states
that any delays were attributable to either a lack of cooperation from
complainant and administrative difficulty, due to the complexity of,
and frequent amendments to, the complaint.
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case claiming
discrimination is a three-step process as set forth in McDonnell Douglas
Corporation v. Green, 411 U.S. 792, 802-803 (1973), and its progeny.
See Hochstadt v. Worcestor Foundation for Experimental Biology, Inc.,
425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to retaliation cases). For complainant to
prevail, he must first establish a prima facie case of discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. McDonnell Douglas, 411 U.S. at
802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden
then shifts to the agency to articulate a legitimate, nondiscriminatory
reason for its actions. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is
pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133
(2000).
This order of
Legal Analysis:
the Commission finds that the agency has articulated
legitimate, nondiscriminatory reasons for its actions. Consequently,
we will dispense with an examination of whether complainant established
a prima facie case with respect to the above cited issues and review
below the reasons articulated by the agency for its actions as well as
complainant's effort to prove pretext.
Claim 1
The Special Counsel to the Chairman stated that complainant was not
selected for the Administrative Officer position because the selectee
had performed successfully for the Chairman during the past year and
that she was experienced in meeting budget responsibilities, performing
duties required for notation items, creating and /or maintaining Board
meeting books, and working with other offices, in particular the Office of
Safety Recommendations. We find that the agency articulated legitimate,
nondiscriminatory reasons for its decision not to select complainant.
We find that complainant failed to refute the agency's stated reasons for
her non-selection for the position at issue. Complainant has not shown
that her qualifications for the position at issue were so superior to
those of the selectee as to warrant a finding that the agency's stated
reasons are pretextual. See Bauer v. Bailar, 647 F.2d 1037, 1048 (10th
Cir. 1981). The Commission finds that it was not unreasonable for the
agency to determine that the selectee's experience was more applicable
than complainant's experience to the relevant position.
Complainant contends that the selectee was preselected for the position
when she was placed in a detail assignment in the Chairman's Office.
Complainant argues that the selective was placed in the detail for the
sole purpose of advancing her career and promoting her to a higher grade
level. We observe that even if preselection occurred, complainant has not
shown that any such preselection was motivated by discriminatory animus.
Goostree v. Tennessee, 796 F.2d 854, 861 (6th Cir. 1986). We find that
complainant has not shown, by a preponderance of the evidence, that the
agency's stated reasons for her nonselection were pretext intended to
mask discriminatory intent.
Claim 2
With regard to claim 2, the selecting official stated that complainant's
interpersonal skills were lacking in comparison with the selectee.
Complainant's second-level supervisor noted that complainant was
often abrupt and critical of staff mistakes and questions. We find
that the agency articulated a legitimate, nondiscriminatory reason for
complainant's nonselection for the position of Administrative Officer
in the Office of Highway Safety.
Complainant argues that she previously served in the relevant position
for two years and that the selectee was less qualified, had less time-
in-grade, and fewer years of service and experience with the agency.
We find that complainant has not refuted the agency's position that the
selectee has superior interpersonal skills. We find that complainant
has not established that the reason for her nonselection was pretext
intended to mask discriminatory intent.
Claim 3
As for claim 3, the agency stated complainant's request for a detail to
the Office of Aviation Safety was denied because there was no position for
which the agency was seeking applicants. The agency stated that a review
showed that the workload would only support a two to three week detail,
not the 60 to 90 days required before a detail could be authorized.
We find that the agency articulated legitimate, nondiscriminatory reasons
for not detailing complainant to the Office of Aviation Safety.
Complainant claims that the official who denied her request for a detail
was aware of her previous EEO activity. However, complainant has not
presented any persuasive argument to refute the agency's position that
the available workload did not justify the creation of a detail.
Claim 4
With regard to claim 4, the Office Director stated that the Office
of Highway Safety had a limited training budget and that the BIG
conference was not included in the training plan for several reasons,
primarily cost. With regard to the MBA training course, complainant's
first-line supervisor stated that he denied complainant's request based
on budget restraints. We find that the agency articulated legitimate,
nondiscriminatory reasons for its denial of these training requests.
Complainant contends that other employees in the Office of Highway Safety
were approved funding for training that far exceeded the limitation placed
on her. However, complainant has not refuted the agency's position
that her training requests were clearly more costly than the training
provided to other administrative employees. The agency stated that
estimated total training expenditures for administrative personnel in
the Office of Highway Safety was not above $1,100, yet complainant's
training requests would have cost $2,023 and $4,583, respectively.
We find that complainant has not established that she was discriminated
against when the agency denied her training requests.
Claim 5
As for claim 5, the agency stated that each of the five separate
categories in complainant's performance evaluation was rated as
Excellent and that therefore complainant received an overall rating
of Excellent. We find that the agency articulated legitimate,
nondiscriminatory reasons for complainant's overall rating of Excellent.
Complainant argues that her performance has not changed from Fiscal Years
1995-2000 when she received overall performance ratings of Outstanding.
However, we find that complainant has not persuasively refuted the
agency's position that her performance merited an overall rating of
Excellent. We find that complainant has not established that she
was discriminated against when she was issued a performance rating
of Excellent.
Claim 6
The EEO Director denied that she made inappropriate comments to
complainant and that she delayed assignment of an EEO Counselor and
later the assignment of an EEO Investigator. The EEO Director stated
that she attempted to obtain necessary information from complainant,
but that complainant did not cooperate and would not provide information
on the issues in her complaint. The incidents in claim 6 address the
processing of the instant complaint. The Commission finds that the agency
properly argues on appeal that claim 6 does not state a claim and is
properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1). To the extent
that complainant is arguing that she was harassed by the EEO Director,
we find that complainant has failed to show that any action by the EEO
Director render her aggrieved, was sufficiently severe so as to constitute
harassment, or was in any way motivated by discrimination. Furthermore,
we find no evidence of improper processing of the complaint that in any
way negatively impacted the processing of the instant complaint.
Dismissed Claims
With regard to claim 7, it appears that complainant may not have intended
to consider this a claim separate from the other claims in the complaint.
To the extent that complainant intended this claim to be a separate claim,
we find that it is too vague to state a separate claim and that it was
properly dismissed for failure to state a claim.
With respect to that portion of claim 9 that involves the EEO Director
withholding information regarding a previously filed complaint, we
find that the agency properly dismissed this issue pursuant to 29
C.F.R. §1614.107(a)(8) on the grounds that it alleges dissatisfaction
with the manner in which a previously filed EEO complaint was processed.
With regard to claims 10 - 15, we observe that the alleged incidents
occurred in June 2002, June 6, 2002, July 2002, early 2001, November
2000, the middle part of 2002, and July 2002, respectively. Complainant
admits that she did not initiate contact with an EEO Counselor until
November 4, 2002, after the expiration of the 45-day limitation period
with regard to each of the alleged incidents. The Commission finds that
complainant should have reasonably suspected discrimination at the time of
the incidents. Complainant has not submitted adequate justification for
her failure to initiate contact with an EEO Counselor in a timely manner.
Therefore, we find that claims 10 - 15 were properly dismissed for
untimely EEO Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2).<3>
The Commission finds that claim 8 was properly dismissed for failure to
state a claim. Complainant was not harmed by the alleged comment to a
coworker outside of complainant's presence.<4> Regarding claim 16, we
find that complainant was not harmed with regard to a term, condition
or privilege of her employment when the Deputy Director instructed
a coworker to assist complainant in getting fingerprints completed
pursuant to a background investigation. Therefore, we find that claim
16 was properly dismissed on the grounds of failure to state a claim
pursuant to 29 C.F.R. §1614.107(a)(1). Furthermore, claims 8 and 16
are insufficiently severe or pervasive to state a claim of harassment. | Ida M. Amos v. National Transportation Safety Board
01A51315
February 16, 2006
.
Ida M. Amos,
Complainant,
v.
Marc V. Rosenker,
Acting Chairman,
National Transportation Safety Board,
Agency.
Appeal No. 01A51315
Agency No. 300-AO-2013
Hearing No. 310-2003-05554X
DECISION
Complainant initiated contact with an EEO Counselor on November
4, 2002. Complainant filed a formal EEO complaint on January 23,
2003, and subsequent amendments to the complaint in which she claimed
that the agency discriminated against her on the bases of her race
(African-American), color (black), and in reprisal for her previous EEO
activity under Title VII<1> when:
1. Complainant was not selected for the position of Administrative
Officer, GS-341-09, in the Office of the Chairman (vacancy announcement
02-010).
2. Complainant was not selected for the position of Administrative
Officer, GS-341-09, in the Office of Highway Safety (vacancy announcement
03-005).
3. Complainant was not granted a detail assignment within the Office of
Aviation Safety, South Central (Dallas) Regional Office.
4. Complainant was denied funding for attendance at the 2004 Blacks
In Government (BIG) Conference and she was denied funding to attend a
five-day MBA training course at the American Management Association.
5. Complainant's overall performance evaluation in 2003 was adversely
affected.
6. Complainant was discriminated against on the basis of reprisal when
the EEO Director subjected her to inappropriate comments and delayed
processing her EEO complaint.
7. The agency failed to provide career advancement opportunities and
favorable treatment comparable to non-Black employees, especially White
employees.
8. On June 21, 2002, a coworker had been advised by management to kick
complainant out of her office.
9. The agency engaged in reprisal when it interfered with the EEO
process and modified the EEO Counselor's report after it was submitted to
complainant; removed pertinent information from the report; and provided
false information to the EEO Investigator.
10. In June 2002, complainant was omitted from training for the new
Travel Manager program that was implemented by the Office of the Chief
Financial Officer.
11. Complainant was omitted from training on the new Federal Financial
System that was conducted on June 6, 2002.
12. In July 2002, while in Denver, Colorado to attend group training
on the new payroll system, complainant was separated from the group and
sent to be trained on the Federal Financial System.
13. The Director had a conversation with a coworker regarding
complainant's participation in the EEO process during which the
coworker told the Director that he had told complainant she is being
asked to submit to a background investigation because the Director was
trying to get rid of all of the Blacks in the Office of Highway Safety.
The Director allegedly responded why the hell did you tell her that,
she's already trying to hang my ass?
14. Complainant was denied the use of an agency pager, cellular phone,
and laptop computer.
15. Complainant stated that she is the only Regional Administrative
Assistant who does not have direct access to her monthly purchase card
statement.
16. On or about November 4, 2002, the Deputy Director asked a coworker to
assist complainant in getting fingerprints completed that were required
in connection with a background investigation.
The record reveals that complainant has been employed by the agency as
an Administrative Assistant, GS-303-09, for the Office of Highway Safety
in the Central Regional Office in Arlington, Texas. Complainant has
also worked in the Central Regional Office as a Regional Staff Assistant
and Secretary.
By decision dated March 3, 2003, the agency issued a partial dismissal
wherein it dismissed claims 7-16 of the complaint. Claims 7-8 and 16
were dismissed pursuant to 29 C.F.R. §1614.107(a)(1) on the grounds of
failure to state a claim. Claims 8 and 10-15 were dismissed pursuant to
29 C.F.R. §1614.107(a)(2) on the grounds of failure to initiate contact
with an EEO Counselor in a timely manner. The agency found that a portion
of claim 9 alleges that the EEO Director withheld information from a
previously filed complaint. The agency dismissed this portion of claim
9 pursuant to 29 C.F.R. §1614.107(a)(8) on the grounds that complainant
claimed dissatisfaction with the manner in which her previously filed
EEO complaint was processed. The remaining claims of the complaint were
accepted for investigation.<2>
With regard to claim 7, the agency determined that complainant did not
cite any specific instance where she was personally affected by the
alleged discrimination, or suffered a personal loss or harm with respect
to the terms, conditions or privileges of her employment. As for claim
8, the agency determined that the alleged statement was made on June 21,
2002, and that therefore complainant's EEO contact on November 4, 2002,
was after the expiration of the 45-day limitation period. The agency
also determined that complainant was not harmed with respect to a
term, condition or privilege of her employment. The agency noted that
complainant did not claim that she was actually moved out of her office,
but rather that she was injured solely by the alleged conversation.
With respect to claim 10, the agency noted that complainant stated
that she was omitted from the scheduled group training in June 2002.
The agency determined that complainant's EEO contact on November 4, 2002,
was after the expiration of the 45-day limitation period. With regard
to claim 11, the agency stated that training on the new Federal Financial
System was conducted on June 6, 2002, and that complainant's EEO contact
was not within the 45-day limitation period. As for claim 12, the agency
noted that complainant was allegedly separated from the group in July
2002, more than 45 days before complainant initiated contact with an EEO
Counselor. The agency further noted in light of the fact that complainant
was sent to be trained on the Federal Financial System, that she in fact
received the training that she alleged she was discriminatorily denied.
With regard to claim 13, the agency noted that complainant told the
EEO Counselor that she was informed about the alleged conversation in
early 2001. The agency concluded that complainant's contact of an EEO
Counselor on November 4, 2002, was after the expiration of the 45-day
limitation period.
With respect to claim 14, the agency determined that complainant's
request for a pager was denied in November 2000; her request for a laptop
computer was denied in the middle part of 2002; and that she did not
make a specific request for a cell phone. The agency determined that
complainant did not request permission to use these items and has not
been denied use of these items during the 45-day period preceding her EEO
contact. As for claim 15, the agency noted that complainant stated that
in July 2002, she learned that the aviation staff assistants have direct
access to their individual monthly purchase card statements. The agency
concluded that complainant was aware of the alleged discrimination at
least 90 calendar days before she initiated contact with an EEO Counselor.
With regard to claim 16, the agency determined that complainant failed
to show that she suffered a personal harm or loss with respect to a term,
condition or privilege of her employment for which there is a remedy.
Subsequent to the completion of the agency investigation, the agency
notified complainant of her right to request either a hearing and
decision by an EEOC Administrative Judge or an immediate final action
by the agency. Complainant requested a hearing. On August 20, 2004,
complainant submitted a motion to withdraw her request for a hearing
and requested a final action. The AJ subsequently entered an Order of
Dismissal returning the case to the agency for issuance of a final action.
In a final action dated November 10, 2004, the agency determined that
complainant had not been discriminated against under the alleged bases.
With regard to claim 1, the agency noted that the Special Counsel
to the Chairman stated that complainant lacked experience in the
following areas: being directly responsible for making speaking or
travel arrangements; initiating professional correspondence (including
follow-up correspondence); preparing Board meeting books; and performing
duties regarding notation items. According to the Special Counsel, the
selectee had experience with making travel arrangements and generating and
answering correspondence. The Special Counsel stated that the selectee
performed successfully for the Chairman during the past year and that she
was experienced in meeting budget responsibilities, performing duties
required for notation items, creating and/or maintaining Board meeting
books, and working with other offices (in particular the Office of
Safety Recommendations). The agency determined that complainant failed
to present evidence that her qualifications were so plainly superior to
that of the selectee as to require a finding of pretext. With respect
to claim 2, the agency determined that the selectee's interpersonal
skills were greater than those of complainant. The agency noted that
complainant's second line supervisor stated that complainant was often
abrupt and critical of staff mistakes and questions. As for claim 3,
the agency noted that there was no announcement for a detail position
to the Office of Aviation Safety's South Central Regional Office.
According to the agency, a detail was not authorized based on there
being insufficient workload.
With regard to claim 4, the agency determined that limitations imposed by
budgetary constraints necessitated the denial of funding for complainant's
attendance at the relevant training sessions. The agency stated that
the costs of the training sessions far exceeded the amounts available
for each employee. With regard to claim 5, the agency determined that
complainant's overall performance evaluation for 2003, was not adversely
affected as complainant received the same Excellent rating both
before the alleged EEO complaint activity and afterwards. With regard
to complainant's claim that she had received Outstanding ratings for
1995 to 2000, the agency stated that these ratings were not close enough
in time to allow the formation of a nexus between EEO complaint activity
in 2000, and a performance evaluation of Excellent in 2003.
As for claim 6, the agency noted that the EEO Director denied making
inappropriate comments to complainant and denied delaying assignment
of an EEO Counselor and an EEO Investigator. According to the EEO
Director, she attempted to obtain necessary information from complainant
in order to initiate the process of procuring services of a contract EEO
Counselor, but that complainant did not cooperate and would not provide
information on the issues in her complaint. The agency noted that
despite complainant's lack of cooperation, the complaint was accepted,
assigned to an EEO Counselor, formally filed, amended twice, and an
investigation was completed.
On appeal, complainant maintains that management officials have a
preference for hiring and promoting non-Blacks, especially White
employees. Complainant states that it has taken her twelve years to
advance to the GS-9 grade level and that White employees advance in their
careers at a faster rate despite the fact that many White employees have
less education, experience, and training. Complainant contends that
non-Blacks benefit more often from preselections, detail assignments,
temporary assignments, accretion of duties promotions, and preferential
treatment.
Complainant states that the agency uses detail or temporary assignments
to give the non-Black employee an unfair advantage by preselecting the
individual for the permanent job promotion. Complainant states that
in cases where the non-Black is not qualified, has less experience,
or does not have adequate time-in-grade, the non-Black employee will be
placed in a detail or temporary assignment for a period of time until
the individual can meet the necessary qualifications for the position.
With regard to claim 2, complainant maintains that the selectee was
less qualified, had less time-in-grade, and fewer years of service and
experience with the agency. Complainant states that she previously
served in the position for two years. Complainant argues that disparate
treatment is evident by the fact that the selectee advanced to a GS-9
level in three years, yet it has taken her twelve years to advance to
a GS-9 level. With respect to claim 3, complainant states that she
was informed by a coworker that despite his statement to the contrary,
the official who disapproved her request for a temporary detail, the
Deputy Director of Regional Operations in the Office of Aviation Safety,
was in fact aware of her prior EEO activity.
As for claim 4, complainant contends that other employees in the Office
of Highway Safety were approved funding for training that far exceeded
the limitation placed on her. Complainant states that although the
agency stated that no one from the Office of Highway Safety attended
the BIG conference in Fiscal Year 2004, she was the only individual
from the Office of Highway Safety who sought to attend the conference.
With regard to claim 5, complainant argues that she was consistently
rated Outstanding before she filed a class action on May 4, 2000,
but that she has not received another Outstanding rating despite the
fact her work performance has not changed. With regard to claim 8,
complainant contends that she did not learn of this incident until
October 3, 2002, and that therefore her contact of an EEO Counselor
was timely. With regard to claim 16, complainant claims that she
was treated differently than a White coworker when the Deputy Director
instructed a coworker to assist her with getting her fingerprinting done,
as no such instruction was given with regard to the fingerprinting of
a White coworker for a background investigation.
In response, the agency asserts with regard to claim 1, complainant
failed to offer any evidence that her qualifications for the position at
issue were observably superior to those of the selectee. As for claim
2, the agency states that the selecting official noted that while both
the selectee and complainant were technically competent, the selectee
had demonstrated the ability to work effectively and efficiently
with the individuals and offices she would need to interact with as
the Administrative Officer, while maintaining a friendly, polite and
agreeable demeanor. According to the agency, the selecting official
found complainant to be short and abrupt with staff at times and, in
his experience, complainant had encountered difficulty in dealing with
staff in the past. The agency notes that complainant's first and second
line supervisors agreed with this assessment.
The agency further states that even if preselection occurred, it would
be insufficient to establish an inference of pretext. With regard to
claim 3, the agency asserts that complainant failed to demonstrate that
the agency advertised a detail for which it was soliciting applicants
or that the agency granted anyone else a detail for which she requested
consideration.
With respect to claim 4, the agency asserts that the courses submitted
by complainant did not bear a substantial enough relation to her job
duties and were significantly more costly than the budget allowed.
The agency states that no other administrative employees in the Office
of Highway Safety were approved for training that was even close to the
cost of the two training sessions sought by complainant. The agency notes
that the cost for the 2004 BIG training was $2,023 and the five day MBA
training was $4,583. According to the agency, none of the Fiscal Year
2004 approved estimated total expenditures for administrative personnel
in the Office of Highway Safety exceeded $1,100. The agency further notes
that it has been funding college level courses for complainant since 1991,
and that complainant attended the BIG conference in 2000, 2001 and 2002.
As for claim 5, the agency asserts that complainant offers only vague
conclusions and general statements in support of her belief that she
deserved an Outstanding rating. The agency argues that complainant
failed to demonstrate how her Fiscal Year 2003 performance evaluation
was adversely affected given that she received the same performance
rating as in the two prior years. With regard to claim 6, the agency
asserts that complainant has failed to state an independent claim of
discrimination as she instead raises a concern about the processing
of her complaint. The agency further asserts that complainant has
not demonstrated how the alleged actions had a material effect on the
processing of her complaint. According to the agency, the EEO Director
denies she made any inappropriate comments to complainant or tried to
impede her exercise of her rights under Title VII. The agency states
that any delays were attributable to either a lack of cooperation from
complainant and administrative difficulty, due to the complexity of,
and frequent amendments to, the complaint.
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case claiming
discrimination is a three-step process as set forth in McDonnell Douglas
Corporation v. Green, 411 U.S. 792, 802-803 (1973), and its progeny.
See Hochstadt v. Worcestor Foundation for Experimental Biology, Inc.,
425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to retaliation cases). For complainant to
prevail, he must first establish a prima facie case of discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. McDonnell Douglas, 411 U.S. at
802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden
then shifts to the agency to articulate a legitimate, nondiscriminatory
reason for its actions. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is
pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133
(2000).
This order of analysis in discrimination cases, in which the first step
normally consists of determining the existence of a prima facie case,
need not be followed in all cases. Where the agency has articulated a
legitimate, nondiscriminatory reason for the personnel action at issue,
the factual inquiry can proceed directly to the third step of the
McDonnell Douglas analysis, the ultimate issue of whether complainant
has shown by a preponderance of the evidence that the agency's actions
were motivated by discrimination. United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900150 (June 28, 1990).
For purposes of analysis, we will assume, arguendo, that complainant
established a prima facie case of discrimination on the bases of
race, color and reprisal. Next, we shall consider whether the agency
articulated legitimate, nondiscriminatory reasons for its actions.
In this case, the Commission finds that the agency has articulated
legitimate, nondiscriminatory reasons for its actions. Consequently,
we will dispense with an examination of whether complainant established
a prima facie case with respect to the above cited issues and review
below the reasons articulated by the agency for its actions as well as
complainant's effort to prove pretext.
Claim 1
The Special Counsel to the Chairman stated that complainant was not
selected for the Administrative Officer position because the selectee
had performed successfully for the Chairman during the past year and
that she was experienced in meeting budget responsibilities, performing
duties required for notation items, creating and /or maintaining Board
meeting books, and working with other offices, in particular the Office of
Safety Recommendations. We find that the agency articulated legitimate,
nondiscriminatory reasons for its decision not to select complainant.
We find that complainant failed to refute the agency's stated reasons for
her non-selection for the position at issue. Complainant has not shown
that her qualifications for the position at issue were so superior to
those of the selectee as to warrant a finding that the agency's stated
reasons are pretextual. See Bauer v. Bailar, 647 F.2d 1037, 1048 (10th
Cir. 1981). The Commission finds that it was not unreasonable for the
agency to determine that the selectee's experience was more applicable
than complainant's experience to the relevant position.
Complainant contends that the selectee was preselected for the position
when she was placed in a detail assignment in the Chairman's Office.
Complainant argues that the selective was placed in the detail for the
sole purpose of advancing her career and promoting her to a higher grade
level. We observe that even if preselection occurred, complainant has not
shown that any such preselection was motivated by discriminatory animus.
Goostree v. Tennessee, 796 F.2d 854, 861 (6th Cir. 1986). We find that
complainant has not shown, by a preponderance of the evidence, that the
agency's stated reasons for her nonselection were pretext intended to
mask discriminatory intent.
Claim 2
With regard to claim 2, the selecting official stated that complainant's
interpersonal skills were lacking in comparison with the selectee.
Complainant's second-level supervisor noted that complainant was
often abrupt and critical of staff mistakes and questions. We find
that the agency articulated a legitimate, nondiscriminatory reason for
complainant's nonselection for the position of Administrative Officer
in the Office of Highway Safety.
Complainant argues that she previously served in the relevant position
for two years and that the selectee was less qualified, had less time-
in-grade, and fewer years of service and experience with the agency.
We find that complainant has not refuted the agency's position that the
selectee has superior interpersonal skills. We find that complainant
has not established that the reason for her nonselection was pretext
intended to mask discriminatory intent.
Claim 3
As for claim 3, the agency stated complainant's request for a detail to
the Office of Aviation Safety was denied because there was no position for
which the agency was seeking applicants. The agency stated that a review
showed that the workload would only support a two to three week detail,
not the 60 to 90 days required before a detail could be authorized.
We find that the agency articulated legitimate, nondiscriminatory reasons
for not detailing complainant to the Office of Aviation Safety.
Complainant claims that the official who denied her request for a detail
was aware of her previous EEO activity. However, complainant has not
presented any persuasive argument to refute the agency's position that
the available workload did not justify the creation of a detail.
Claim 4
With regard to claim 4, the Office Director stated that the Office
of Highway Safety had a limited training budget and that the BIG
conference was not included in the training plan for several reasons,
primarily cost. With regard to the MBA training course, complainant's
first-line supervisor stated that he denied complainant's request based
on budget restraints. We find that the agency articulated legitimate,
nondiscriminatory reasons for its denial of these training requests.
Complainant contends that other employees in the Office of Highway Safety
were approved funding for training that far exceeded the limitation placed
on her. However, complainant has not refuted the agency's position
that her training requests were clearly more costly than the training
provided to other administrative employees. The agency stated that
estimated total training expenditures for administrative personnel in
the Office of Highway Safety was not above $1,100, yet complainant's
training requests would have cost $2,023 and $4,583, respectively.
We find that complainant has not established that she was discriminated
against when the agency denied her training requests.
Claim 5
As for claim 5, the agency stated that each of the five separate
categories in complainant's performance evaluation was rated as
Excellent and that therefore complainant received an overall rating
of Excellent. We find that the agency articulated legitimate,
nondiscriminatory reasons for complainant's overall rating of Excellent.
Complainant argues that her performance has not changed from Fiscal Years
1995-2000 when she received overall performance ratings of Outstanding.
However, we find that complainant has not persuasively refuted the
agency's position that her performance merited an overall rating of
Excellent. We find that complainant has not established that she
was discriminated against when she was issued a performance rating
of Excellent.
Claim 6
The EEO Director denied that she made inappropriate comments to
complainant and that she delayed assignment of an EEO Counselor and
later the assignment of an EEO Investigator. The EEO Director stated
that she attempted to obtain necessary information from complainant,
but that complainant did not cooperate and would not provide information
on the issues in her complaint. The incidents in claim 6 address the
processing of the instant complaint. The Commission finds that the agency
properly argues on appeal that claim 6 does not state a claim and is
properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1). To the extent
that complainant is arguing that she was harassed by the EEO Director,
we find that complainant has failed to show that any action by the EEO
Director render her aggrieved, was sufficiently severe so as to constitute
harassment, or was in any way motivated by discrimination. Furthermore,
we find no evidence of improper processing of the complaint that in any
way negatively impacted the processing of the instant complaint.
Dismissed Claims
With regard to claim 7, it appears that complainant may not have intended
to consider this a claim separate from the other claims in the complaint.
To the extent that complainant intended this claim to be a separate claim,
we find that it is too vague to state a separate claim and that it was
properly dismissed for failure to state a claim.
With respect to that portion of claim 9 that involves the EEO Director
withholding information regarding a previously filed complaint, we
find that the agency properly dismissed this issue pursuant to 29
C.F.R. §1614.107(a)(8) on the grounds that it alleges dissatisfaction
with the manner in which a previously filed EEO complaint was processed.
With regard to claims 10 - 15, we observe that the alleged incidents
occurred in June 2002, June 6, 2002, July 2002, early 2001, November
2000, the middle part of 2002, and July 2002, respectively. Complainant
admits that she did not initiate contact with an EEO Counselor until
November 4, 2002, after the expiration of the 45-day limitation period
with regard to each of the alleged incidents. The Commission finds that
complainant should have reasonably suspected discrimination at the time of
the incidents. Complainant has not submitted adequate justification for
her failure to initiate contact with an EEO Counselor in a timely manner.
Therefore, we find that claims 10 - 15 were properly dismissed for
untimely EEO Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2).<3>
The Commission finds that claim 8 was properly dismissed for failure to
state a claim. Complainant was not harmed by the alleged comment to a
coworker outside of complainant's presence.<4> Regarding claim 16, we
find that complainant was not harmed with regard to a term, condition
or privilege of her employment when the Deputy Director instructed
a coworker to assist complainant in getting fingerprints completed
pursuant to a background investigation. Therefore, we find that claim
16 was properly dismissed on the grounds of failure to state a claim
pursuant to 29 C.F.R. §1614.107(a)(1). Furthermore, claims 8 and 16
are insufficiently severe or pervasive to state a claim of harassment.
CONCLUSION
The agency's final action is AFFIRMED.
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
February 16, 2006
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1Complainant withdrew the basis of national origin. Claims 6 and 9 are
only based on reprisal.
2The remaining portion of claim 9 was accepted for investigation and
incorporated into claim 6.
3Regarding the portion of claim 14 concerning the alleged denial of a
cellular phone, we find that complainant has failed to indicate that
there was any incident where she was denied the use of such a device
within 45 days of her EEO Counselor contact.
4 We do not address whether this claim was timely raised with an EEO
Counselor.
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212 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01992817.txt | 01992817.txt | TXT | text/plain | 26,937 | Michael Cristantiello v. Army 01992817 December 19, 2000 . Michael Cristantiello, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency. | December 19, 2000 | Appeal Number: 01992817
Complaint Allegations:
In his complaint, complainant alleged discrimination on the basis of disability (delusional disorder, major depression) and reprisal (prior EEO activity), when the agency conducted an allegedly biased and unfair investigation of his work at his position; allegedly unlawfully and improperly detailed him to another position; issued him a 14-day suspension for alleged misconduct for actions at his work prior to the detail; notified him that he was being placed on unpaid status; and allegedly sought to earlier discourage him from proceeding with his EEO complaint. BACKGROUND
Case Facts:
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dated January 15, 1999, dismissing his complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.,
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq.<1> The appeal is accepted pursuant
to 29 C.F.R. § 1614.405.<2> In his complaint, complainant alleged
discrimination on the basis of disability (delusional disorder, major
depression) and reprisal (prior EEO activity), when the agency conducted
an allegedly biased and unfair investigation of his work at his position;
allegedly unlawfully and improperly detailed him to another position;
issued him a 14-day suspension for alleged misconduct for actions at
his work prior to the detail; notified him that he was being placed
on unpaid status; and allegedly sought to earlier discourage him from
proceeding with his EEO complaint.
BACKGROUND
The agency, in its FAD, identified the issues in the complaint as
alleging that complainant was discriminated against: when he was
detailed to Broken Arrow, OK, on October 15, 1997 (lasting until
July 7, 1998) (issue 1); and when, on June 30, 1998, he received a
14-day suspension for alleged misconduct (effective July 8, 1998)
(issue 2).<3> The agency dismissed the allegations pursuant to EEOC
Regulation 29 C.F.R. § 1614.107(a)(2), for complainant's failure to
contact an EEO Counselor within the applicable 45-day time period
established by 29 C.F.R. § 1614.105(a)(1). The agency noted that
complainant first contacted the EEO office on September 11, 1998,
with initial contact with the EEO Counselor on September 14, 1998.
The agency further found that the incidents did not constitute ongoing
and continuous discrimination, on the ground that they were not matters
repeatedly and uninterruptedly continued over a period of time and were
sufficiently distinct and discrete to trigger the 45-day time period.
The other allegations in the complaint were also dismissed pursuant
to 29 C.F.R. § 1614.107(a)(2), because those matters were not brought
to the attention of the EEO counselor and were not like or related to
the matters brought to the attention of an EEO counselor.
On appeal, complainant essentially argues that the FAD did not properly
consider all of the allegations in his complaint, and that he has been
subjected to a continuous course of retaliation. The agency replied in
opposition to the appeal.
FINDINGS AND
Legal Analysis:
the Commission, may materially affect the validity of
the FAD's timeliness findings, concerning the allegations with respect
to complainant's detail and his suspension. In Ericson v. Department of
the Army, EEOC Request No. 05920623 (January 14, 1993), the Commission
stated that the agency has the burden of providing evidence and/or proof
to support its final decisions. See also Gens v. Department of Defense,
EEOC Request No. 05910837 (January 31, 1992).
The complaint, which was filed November 30, 1998, was submitted earlier to
the Director, Human Relations, EEO Programs, and was dated September 11,
1998, the date the agency acknowledges complainant first contacted the
EEO office. It cannot be disputed that the complaint was also before
the EEO counselor. More specifically, in the FAD, the agency suggests
that complainant clarified the complaint to embrace only the two issues
delineated in the FAD (issues 1 and 2) and refers to a memorandum of the
EEO counselor, dated November 24, 1998. However, the EEO counselor,
in the memorandum, recognized that issue 3, the alleged improper
investigation, related to the detail to Broken Arrow, OK (issue 1),
and the subsequent 14-day suspension (issue 2), and also states that
issue 4, concerning being in a non-pay status (at least in part),
directly related to the suspension. When issue 5, the discouraging
of the filing of the retaliation complaint (allegedly in August 1998),
was discussed with complainant's attorney, the EEO counselor indicated
he could not tell with certainty whether the alleged complaint was a
grievance or an EEO complaint, so the issue was not addressed. The EEO
counselor explained that complainant was on extended sick leave and had
not been placed on non-pay status (issue 4), thus suggesting the matter
was not ripe for consideration. The EEO counselor also stated that both
complainant and his attorney agreed that the only issues to be addressed
were those regarding the detail and the suspension (issues 1 and 2).
The Commission concludes that the agency failed to properly address
complainant's claims, concerning the investigation of complainant's
position prior to his detail (issue 3), the notification that he was
being placed on unpaid status (issue 4), and the discouraging of the
filing of the retaliation complaint (issue 5). The regulation set forth
at 29 C.F.R. § 1614.107(a)(2), and on which the agency relies for its
dismissal of these other allegations, states, in pertinent part, that an
agency shall dismiss a complaint which raises a matter that has not been
brought to the attention of an EEO Counselor, and is not like or related
to a matter on which the complainant has received counseling. A later
claim or complaint is "like or related" to the original complaint if the
later claim or complaint adds to or clarifies the original complaint and
could have reasonably been expected to grow out of the original complaint
during the investigation. See Scher v. United States Postal Service,
EEOC Request No. 05940702 (May 30, 1995); Calhoun v. United States Postal
Service, EEOC Request No. 05891068 (March 8, 1990).
The record on appeal reveals that the EEO Office and the EEO counselor
were notified of issues 3, 4, and 5. The EEO counselor further
acknowledged that the investigation of complainant's work at his position
prior to the detail (issue 3) was related to the detail (issue 1) and
14-day suspension (issue 2), and that the allegation of being in non-pay
status (issue 4) (at least in part) directly related to the suspension
as well. It is also apparent that the alleged discouraging of the filing
of the retaliation complaint in August 1998 (issue 5) is like and related
to the present complaint. Indeed, the present complaint is a retaliation
complaint, and since complainant asserts that he sought to file it within
several weeks of the present complaint, a reasonable inference could be
made that at least some of the same matters, including the investigation,
detail, and suspension would have been in issue. While there may be
some ambiguity as to complainant's discussions with the EEO counselor
as to the pursuit of the allegations in the complaint, dismissal is not
favored, and should be construed narrowly, especially where a remedial
statute is involved. If complainant wished to narrow his complaint,
there is no evidence from complainant that this has been the case.
From complainant's appeal, it would appear that complainant does not wish
his complaint narrowed. We therefore decline to give decisive weight to
the EEO counselor's view that complainant wished to narrow his complaint.
Final Decision:
Accordingly, we conclude that dismissal under 29 C.F.R. § 1614.107(a)(2) was improper based on the record before the Commission. The agency also argues that (issue 4) the notification of being in non-pay status was a proposal, and that at the time of the EEO counselor's November 24, 1998, memorandum, complainant had been on extended sick leave, and had not been placed on non-pay status. The regulation set forth at 29 C.F.R. § 1614.107(a)(5) provides, in part, that the agency shall dismiss a complaint that alleges that a proposal to take a personnel action, or other preliminary step to taking a personnel action, is discriminatory. If complainant's claim was viewed in isolation, clearly dismissal would be proper. We note, however, that in certain situations, an agency action that alone might not state a claim nevertheless becomes sufficient when viewed as one incident in an alleged pattern of harassment in conjunction with other claims. See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). Moreover, if a proposed action is purportedly combined with other acts of harassment to form an alleged pattern of harassment, the agency may not properly dismiss it as a proposed action. See Suttles v. United States Postal Service, EEOC Request No. 05970496 (April 8, 1999); Butler v. Department of Labor, EEOC Request No. 05891016 (December 1, 1989). Consequently, when complainant's claim is viewed in the context of complainant's complaint of harassment, it cannot be considered a proposed action and the agency's dismissal of that claim was improper. In the case at hand, complainant has argued that he has been the victim of continuous retaliation, which is akin to harassment, e.g., one can retaliate by harassing. Accordingly, we reject the agency's position that the allegation, involving notification of being placed in non-pay status, was properly dismissed. Timeliness of Complainant's Allegations We now address the timeliness issues. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999). Thus, 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. EEOC Regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. The Commission has also consistently held that a complainant satisfies the requirement of Counselor contact by contacting an agency official logically connected with the EEO process, even if that official is not an EEO Counselor, and by exhibiting an intent to begin the EEO process. See Cox v. Department of Housing and Urban Development, EEOC Request No. 05980083 (July 30, 1998); Allen v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996). In addition, where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy, v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992)). We begin our analysis by focusing on complainant's assertion, in his complaint, that he sought to file a complaint of retaliation on or about August 21, 1998 (issue 5), and spoke to a human relations specialist of the agency. Complainant further asserts in the complaint, that he was misinformed by the human relations specialist, that the time for filing had passed. Those assertions relate to complainant's allegation that the agency acted to discourage him from proceeding with his complaint. It is unclear, but immaterial, whether the complainant's allegation embraces other assertions of wrongdoing involving discouraging him from proceeding with his complaint. Nevertheless, on the substantive allegation of the unlawfulness of discouraging complainant's discrimination complaint, there was timely EEO counselor contact, since the agency acknowledges complainant first contacted the EEO office on September 11, 1998. However, it must be emphasized, that issue 5 may be relevant to the timeliness of the filing of the other complaint allegations presently under review on appeal, to the extent those allegations were sought to be presented on or about August 21, 1998, but were delayed due to the agency's misinformation. We now address whether the alleged misinformation may justify vitiating, in any part, the agency's dismissal for untimeliness of the other allegations. The Commission has previously held that an agency may not dismiss a complaint based on a complainant's untimeliness, if that untimeliness is caused by the agency's action in misleading or misinforming the complainant. See Wilkinson v. United States Postal Service, EEOC Request No. 05950205 (March 26, 1996). See also Elijah v. Department of the Army, EEOC Request No. 05950632 (March 29, 1996) (if agency officials misled complainant into waiting to initiate EEO counseling, agency must extend time limit for contacting EEO Counselor). The agency submits, in its response to the appeal, that complainant contacted the human relations specialist regarding the filing of a grievance concerning the 14-day suspension (issue 2), and thus there was no misinformation about the filing of an EEO complaint with the Commission. The record indicates that the agency's EEO counselor talked with complainant's attorney and, despite not being able to tell with certainty whether the alleged complaint was a grievance or EEO complaint, did not pursue the matter with complainant. The EEO counselor, purportedly did discuss the matter with the human relations specialist, and reported that the matter discussed the filing of a grievance. However, no explanation is given as to why the human relations specialist did not provide a statement. The agency could also have considered whether the human relations specialist was sufficiently related to the EEO process. The complaint unambiguously states that complainant sought to file a complaint of retaliation. Under the circumstances, the discrimination allegation concerning the 14-day suspension (issue 2), which began July 8, 1998, may possibly have been timely, within the 45-day time limit, since he allegedly sought to file the complaint on or around August 21, 1998. To the extent, that the allegation, involving being in non-pay status (issue 4), directly related to the suspension, that issue could be timely as well. In view of the above, we find that the agency did not bear its burden of obtaining sufficient information to support a reasoned determination as to the timeliness matters discussed above. The detail (issue l), which began October 15, 1997, and the investigation, which began prior to the detail (issue 3), were clearly beyond the 45-day period for EEO counselor contact even on or around August 21, 1998. In addition, however, the Commission has also held that the time requirements for initiating EEO counseling could be waived as to certain claims within a complaint when the complainant alleged a continuing violation; that is, a series of related discriminatory acts, one of which fell within the time period for contacting an EEO Counselor. See Reid v. Department of Commerce, EEOC Request No. 05970705 (April 22, 1999); McGivern v. United States Postal Service, EEOC Request No. 05901150 (December 28, 1990). A determination of whether a series of discrete acts constitutes a continuing violation depends on the interrelatedness of the past and present acts. Berry v. Board of Supervisors of Louisiana State Univ., 715 F.2d 971, 981 (5th Cir. 1983), cert. denied, 479 U.S. 868 (1986). It is necessary to determine whether the acts are interrelated by a common nexus or theme. See Vissing v. Nuclear Regulatory Commission, EEOC Request No. 05890308 (June 13, 1989); Verkennes v. Department of Defense, EEOC Request No. 05900700 (September 21, 1990); Maldonado v. Department of the Interior, EEOC Request No. 05900937 (October 31, 1990). Should such a nexus exist, complainant will have established a continuing violation and the agency would be obligated to "overlook the untimeliness of the complaint with respect to some of the acts" challenged by complainant. Scott v. Claytor, 469 F. Supp. 22, 26 (D.D.C. 1978). Moreover, the Commission recently issued policy guidance on evaluating continuing violations in the EEOC Compliance Manual, Volume I , Threshold Issues at §2 (May 12, 2000). For purposes of a serial continuing violation, complainant must establish: (1) a series of separate but closely related discriminatory acts; (2) a timely event, namely, a discriminatory event or act that occurred within the limitations period; and (3) a link between the discriminatory event occurring within the limitations period and the actions that occurred outside the limitations period.<4> Id. at 2-75 through 2-76. We therefore find that the agency did not properly consider whether the matters in the complaint were a continuing violation, since it did not consider the interrelatedness of the past and present acts. The FAD focused primarily on whether the incidents were ongoing and continuous and sufficiently distinct and discrete. It was error not to consider the interrelatedness of the past and present acts. The agency should also consider whether a timely event, namely, a discriminatory event or act occurred within the limitations period and whether there was a link between the discriminatory event occurring within the limitations period and the actions that occurred outside that period. Under a continuing violation theory, it is possible all of complainant's allegations could be justified as timely. Of course, complainant has the ultimate burden of demonstrating that the allegations were part of a continuing violation. CONCLUSION Accordingly, the agency's dismissal of issue (5) is REVERSED, and the claim is REMANDED for further processing. Further, the agency's dismissal of issues (1), (2), (3) and (4) is VACATED. | Michael Cristantiello v. Army
01992817
December 19, 2000
.
Michael Cristantiello,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Appeal No. 01992817
Agency No. 0980911680
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dated January 15, 1999, dismissing his complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.,
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq.<1> The appeal is accepted pursuant
to 29 C.F.R. § 1614.405.<2> In his complaint, complainant alleged
discrimination on the basis of disability (delusional disorder, major
depression) and reprisal (prior EEO activity), when the agency conducted
an allegedly biased and unfair investigation of his work at his position;
allegedly unlawfully and improperly detailed him to another position;
issued him a 14-day suspension for alleged misconduct for actions at
his work prior to the detail; notified him that he was being placed
on unpaid status; and allegedly sought to earlier discourage him from
proceeding with his EEO complaint.
BACKGROUND
The agency, in its FAD, identified the issues in the complaint as
alleging that complainant was discriminated against: when he was
detailed to Broken Arrow, OK, on October 15, 1997 (lasting until
July 7, 1998) (issue 1); and when, on June 30, 1998, he received a
14-day suspension for alleged misconduct (effective July 8, 1998)
(issue 2).<3> The agency dismissed the allegations pursuant to EEOC
Regulation 29 C.F.R. § 1614.107(a)(2), for complainant's failure to
contact an EEO Counselor within the applicable 45-day time period
established by 29 C.F.R. § 1614.105(a)(1). The agency noted that
complainant first contacted the EEO office on September 11, 1998,
with initial contact with the EEO Counselor on September 14, 1998.
The agency further found that the incidents did not constitute ongoing
and continuous discrimination, on the ground that they were not matters
repeatedly and uninterruptedly continued over a period of time and were
sufficiently distinct and discrete to trigger the 45-day time period.
The other allegations in the complaint were also dismissed pursuant
to 29 C.F.R. § 1614.107(a)(2), because those matters were not brought
to the attention of the EEO counselor and were not like or related to
the matters brought to the attention of an EEO counselor.
On appeal, complainant essentially argues that the FAD did not properly
consider all of the allegations in his complaint, and that he has been
subjected to a continuous course of retaliation. The agency replied in
opposition to the appeal.
FINDINGS AND ANALYSIS
Complainant's Allegations
At the outset, we consider whether the FAD properly addressed the
dismissal of the other allegations relating to: the investigation of
complainant's position prior to his detail (issue 3), the complainant's
notification that he was being placed on unpaid status (issue 4), and
the discouraging of the filing of the retaliation complaint (issue 5).
We follow this course, in part, because these other allegations, if
properly before the Commission, may materially affect the validity of
the FAD's timeliness findings, concerning the allegations with respect
to complainant's detail and his suspension. In Ericson v. Department of
the Army, EEOC Request No. 05920623 (January 14, 1993), the Commission
stated that the agency has the burden of providing evidence and/or proof
to support its final decisions. See also Gens v. Department of Defense,
EEOC Request No. 05910837 (January 31, 1992).
The complaint, which was filed November 30, 1998, was submitted earlier to
the Director, Human Relations, EEO Programs, and was dated September 11,
1998, the date the agency acknowledges complainant first contacted the
EEO office. It cannot be disputed that the complaint was also before
the EEO counselor. More specifically, in the FAD, the agency suggests
that complainant clarified the complaint to embrace only the two issues
delineated in the FAD (issues 1 and 2) and refers to a memorandum of the
EEO counselor, dated November 24, 1998. However, the EEO counselor,
in the memorandum, recognized that issue 3, the alleged improper
investigation, related to the detail to Broken Arrow, OK (issue 1),
and the subsequent 14-day suspension (issue 2), and also states that
issue 4, concerning being in a non-pay status (at least in part),
directly related to the suspension. When issue 5, the discouraging
of the filing of the retaliation complaint (allegedly in August 1998),
was discussed with complainant's attorney, the EEO counselor indicated
he could not tell with certainty whether the alleged complaint was a
grievance or an EEO complaint, so the issue was not addressed. The EEO
counselor explained that complainant was on extended sick leave and had
not been placed on non-pay status (issue 4), thus suggesting the matter
was not ripe for consideration. The EEO counselor also stated that both
complainant and his attorney agreed that the only issues to be addressed
were those regarding the detail and the suspension (issues 1 and 2).
The Commission concludes that the agency failed to properly address
complainant's claims, concerning the investigation of complainant's
position prior to his detail (issue 3), the notification that he was
being placed on unpaid status (issue 4), and the discouraging of the
filing of the retaliation complaint (issue 5). The regulation set forth
at 29 C.F.R. § 1614.107(a)(2), and on which the agency relies for its
dismissal of these other allegations, states, in pertinent part, that an
agency shall dismiss a complaint which raises a matter that has not been
brought to the attention of an EEO Counselor, and is not like or related
to a matter on which the complainant has received counseling. A later
claim or complaint is "like or related" to the original complaint if the
later claim or complaint adds to or clarifies the original complaint and
could have reasonably been expected to grow out of the original complaint
during the investigation. See Scher v. United States Postal Service,
EEOC Request No. 05940702 (May 30, 1995); Calhoun v. United States Postal
Service, EEOC Request No. 05891068 (March 8, 1990).
The record on appeal reveals that the EEO Office and the EEO counselor
were notified of issues 3, 4, and 5. The EEO counselor further
acknowledged that the investigation of complainant's work at his position
prior to the detail (issue 3) was related to the detail (issue 1) and
14-day suspension (issue 2), and that the allegation of being in non-pay
status (issue 4) (at least in part) directly related to the suspension
as well. It is also apparent that the alleged discouraging of the filing
of the retaliation complaint in August 1998 (issue 5) is like and related
to the present complaint. Indeed, the present complaint is a retaliation
complaint, and since complainant asserts that he sought to file it within
several weeks of the present complaint, a reasonable inference could be
made that at least some of the same matters, including the investigation,
detail, and suspension would have been in issue. While there may be
some ambiguity as to complainant's discussions with the EEO counselor
as to the pursuit of the allegations in the complaint, dismissal is not
favored, and should be construed narrowly, especially where a remedial
statute is involved. If complainant wished to narrow his complaint,
there is no evidence from complainant that this has been the case.
From complainant's appeal, it would appear that complainant does not wish
his complaint narrowed. We therefore decline to give decisive weight to
the EEO counselor's view that complainant wished to narrow his complaint.
Accordingly, we conclude that dismissal under 29 C.F.R. § 1614.107(a)(2)
was improper based on the record before the Commission.
The agency also argues that (issue 4) the notification of being
in non-pay status was a proposal, and that at the time of the EEO
counselor's November 24, 1998, memorandum, complainant had been on
extended sick leave, and had not been placed on non-pay status. The
regulation set forth at 29 C.F.R. § 1614.107(a)(5) provides, in part,
that the agency shall dismiss a complaint that alleges that a proposal
to take a personnel action, or other preliminary step to taking a
personnel action, is discriminatory. If complainant's claim was viewed
in isolation, clearly dismissal would be proper. We note, however,
that in certain situations, an agency action that alone might not state
a claim nevertheless becomes sufficient when viewed as one incident
in an alleged pattern of harassment in conjunction with other claims.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). Moreover, if a proposed action is purportedly
combined with other acts of harassment to form an alleged pattern of
harassment, the agency may not properly dismiss it as a proposed action.
See Suttles v. United States Postal Service, EEOC Request No. 05970496
(April 8, 1999); Butler v. Department of Labor, EEOC Request No. 05891016
(December 1, 1989). Consequently, when complainant's claim is viewed
in the context of complainant's complaint of harassment, it cannot be
considered a proposed action and the agency's dismissal of that claim
was improper. In the case at hand, complainant has argued that he has
been the victim of continuous retaliation, which is akin to harassment,
e.g., one can retaliate by harassing. Accordingly, we reject the agency's
position that the allegation, involving notification of being placed in
non-pay status, was properly dismissed.
Timeliness of Complainant's Allegations
We now address the timeliness issues. EEOC Regulation 29 C.F.R. §
1614.105(a)(1) requires that complaints of discrimination should be
brought to the attention of the Equal Employment Opportunity Counselor
within forty-five (45) days of the date of the matter alleged to be
discriminatory or, in the case of a personnel action, within forty-five
(45) days of the effective date of the action. The Commission has
adopted a "reasonable suspicion" standard (as opposed to a "supportive
facts" standard) to determine when the forty-five (45) day limitation
period is triggered. See Howard v. Department of the Navy, EEOC Request
No. 05970852 (February 11, 1999). Thus, 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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The Commission has also consistently held that a complainant satisfies
the requirement of Counselor contact by contacting an agency official
logically connected with the EEO process, even if that official is not
an EEO Counselor, and by exhibiting an intent to begin the EEO process.
See Cox v. Department of Housing and Urban Development, EEOC Request
No. 05980083 (July 30, 1998); Allen v. United States Postal Service,
EEOC Request No. 05950933 (July 9, 1996). In addition, where, as here,
there is an issue of timeliness, "[a]n agency always bears the burden of
obtaining sufficient information to support a reasoned determination as
to timeliness." Guy, v. Department of Energy, EEOC Request No. 05930703
(January 4, 1994) (quoting Williams v. Department of Defense, EEOC
Request No. 05920506 (August 25, 1992)).
We begin our analysis by focusing on complainant's assertion, in his
complaint, that he sought to file a complaint of retaliation on or about
August 21, 1998 (issue 5), and spoke to a human relations specialist of
the agency. Complainant further asserts in the complaint, that he was
misinformed by the human relations specialist, that the time for filing
had passed. Those assertions relate to complainant's allegation that the
agency acted to discourage him from proceeding with his complaint. It is
unclear, but immaterial, whether the complainant's allegation embraces
other assertions of wrongdoing involving discouraging him from proceeding
with his complaint. Nevertheless, on the substantive allegation of the
unlawfulness of discouraging complainant's discrimination complaint,
there was timely EEO counselor contact, since the agency acknowledges
complainant first contacted the EEO office on September 11, 1998. However,
it must be emphasized, that issue 5 may be relevant to the timeliness
of the filing of the other complaint allegations presently under review
on appeal, to the extent those allegations were sought to be presented
on or about August 21, 1998, but were delayed due to the agency's
misinformation.
We now address whether the alleged misinformation may justify vitiating,
in any part, the agency's dismissal for untimeliness of the other
allegations. The Commission has previously held that an agency may
not dismiss a complaint based on a complainant's untimeliness, if
that untimeliness is caused by the agency's action in misleading or
misinforming the complainant. See Wilkinson v. United States Postal
Service, EEOC Request No. 05950205 (March 26, 1996). See also Elijah
v. Department of the Army, EEOC Request No. 05950632 (March 29, 1996)
(if agency officials misled complainant into waiting to initiate EEO
counseling, agency must extend time limit for contacting EEO Counselor).
The agency submits, in its response to the appeal, that complainant
contacted the human relations specialist regarding the filing of
a grievance concerning the 14-day suspension (issue 2), and thus
there was no misinformation about the filing of an EEO complaint with
the Commission. The record indicates that the agency's EEO counselor
talked with complainant's attorney and, despite not being able to tell
with certainty whether the alleged complaint was a grievance or EEO
complaint, did not pursue the matter with complainant. The EEO counselor,
purportedly did discuss the matter with the human relations specialist,
and reported that the matter discussed the filing of a grievance.
However, no explanation is given as to why the human relations specialist
did not provide a statement. The agency could also have considered
whether the human relations specialist was sufficiently related to
the EEO process. The complaint unambiguously states that complainant
sought to file a complaint of retaliation. Under the circumstances,
the discrimination allegation concerning the 14-day suspension (issue 2),
which began July 8, 1998, may possibly have been timely, within the 45-day
time limit, since he allegedly sought to file the complaint on or around
August 21, 1998. To the extent, that the allegation, involving being in
non-pay status (issue 4), directly related to the suspension, that issue
could be timely as well. In view of the above, we find that the agency
did not bear its burden of obtaining sufficient information to support a
reasoned determination as to the timeliness matters discussed above. The
detail (issue l), which began October 15, 1997, and the investigation,
which began prior to the detail (issue 3), were clearly beyond the 45-day
period for EEO counselor contact even on or around August 21, 1998.
In addition, however, the Commission has also held that the time
requirements for initiating EEO counseling could be waived as to certain
claims within a complaint when the complainant alleged a continuing
violation; that is, a series of related discriminatory acts, one of which
fell within the time period for contacting an EEO Counselor. See Reid
v. Department of Commerce, EEOC Request No. 05970705 (April 22, 1999);
McGivern v. United States Postal Service, EEOC Request No. 05901150
(December 28, 1990).
A determination of whether a series of discrete acts constitutes a
continuing violation depends on the interrelatedness of the past and
present acts. Berry v. Board of Supervisors of Louisiana State Univ.,
715 F.2d 971, 981 (5th Cir. 1983), cert. denied, 479 U.S. 868 (1986).
It is necessary to determine whether the acts are interrelated by a
common nexus or theme. See Vissing v. Nuclear Regulatory Commission, EEOC
Request No. 05890308 (June 13, 1989); Verkennes v. Department of Defense,
EEOC Request No. 05900700 (September 21, 1990); Maldonado v. Department of
the Interior, EEOC Request No. 05900937 (October 31, 1990). Should such
a nexus exist, complainant will have established a continuing violation
and the agency would be obligated to "overlook the untimeliness of the
complaint with respect to some of the acts" challenged by complainant.
Scott v. Claytor, 469 F. Supp. 22, 26 (D.D.C. 1978).
Moreover, the Commission recently issued policy guidance on evaluating
continuing violations in the EEOC Compliance Manual, Volume I , Threshold
Issues at §2 (May 12, 2000). For purposes of a serial continuing
violation, complainant must establish: (1) a series of separate but
closely related discriminatory acts; (2) a timely event, namely, a
discriminatory event or act that occurred within the limitations period;
and (3) a link between the discriminatory event occurring within the
limitations period and the actions that occurred outside the limitations
period.<4> Id. at 2-75 through 2-76.
We therefore find that the agency did not properly consider whether the
matters in the complaint were a continuing violation, since it did not
consider the interrelatedness of the past and present acts. The FAD
focused primarily on whether the incidents were ongoing and continuous
and sufficiently distinct and discrete. It was error not to consider
the interrelatedness of the past and present acts. The agency should
also consider whether a timely event, namely, a discriminatory event or
act occurred within the limitations period and whether there was a link
between the discriminatory event occurring within the limitations period
and the actions that occurred outside that period. Under a continuing
violation theory, it is possible all of complainant's allegations could
be justified as timely. Of course, complainant has the ultimate burden of
demonstrating that the allegations were part of a continuing violation.
CONCLUSION
Accordingly, the agency's dismissal of issue (5) is REVERSED, and the
claim is REMANDED for further processing. Further, the agency's dismissal
of issues (1), (2), (3) and (4) is VACATED.
ORDER
The agency is ORDERED to perform the following:
(1) The agency must conduct a supplemental investigation to determine
whether the incidents raised in (2) and (4), when considered in light
of complainant's timely claim (5), should be considered timely under
the misinformation theory.
(2) The agency must conduct a supplemental investigation to
determine whether the incidents raised in (1), (2), (3), and
(4), when considered in light of complainant's timely claim (5),
should be considered timely under the continuing violation theory.
Within forty-five (45) calendar days of the date this decision becomes
final, the agency must issue a new notice of processing accepting claim
(5) for investigation, and determining whether the matters raised in (1),
(2), (3), and (4) will be investigated. If the agency determines that
the incidents raised in (1), (2), (3), and (4) should not be investigated,
it must explain the reasons for its determination. Thereafter, the agency
shall conduct an investigation of the accepted claim(s) as provided under
29 C.F.R. §1614.108), and must submit a copy of the investigation along
with the appropriate rights to the complainant within 150 days of the
date this decision becomes final.
(4) The agency shall submit a copy of the notice of processing
addressing all of complainant's claims to the Compliance Officer as
provided below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(Supp. V 1993).
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 (M0900)
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
December 19, 2000
__________________
Date
1The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
3The alleged misconduct involved complainant's actions from July through
October 4, 1997, prior to his detail to Broken Arrow, OK. The complaint
indicates complainant has been off of work since July 7, 1998, under
doctor's care.
4The guidance also discusses systemic continuing violations, but there
is no suggestion that a systemic continuing violation is at issue in
this case.
| [
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"Gens v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992)",
"Scher v. United States Postal Service, EEOC Request No. 05940702 (May 30, 1995)",
"Calhoun v. United States Postal Service, EEOC Request No. 058... | [
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213 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120142029.pdf | 0120142029.pdf | PDF | application/pdf | 23,028 | Rhea H.,1 Complainant, v. Gina McCarthy, Administrator, Environmental Protection Agency, Agency. | March 24, 2014 | Appeal Number: 0120142029
Background:
At the time of events giving rise to this complaint, Complainant worked as an EEO/ADR
Specialist at the Agency’s work facility in Indianapolis .
On November 17, 2011, Complainant filed an EEO complaint wherein she claimed that the
Agency discriminated against her on the bases of her race (African -American), sex (femal e),
and age (57) when in August 2011, she was not selected for an EEO Manager , GS-13,
position. 2
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non- parties and the Commission’s website.
2 Complainant withdrew her claim of reprisal with regard to her nonselection.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing
and the AJ held a hearing on January 16, 2014, and issued a decision on February 7, 2014.
The AJ found that discrimination occurred with regard to each of the alleged bases . The AJ
ordered the Agency to hire Complainant into the EE O Manager position and provide her with
back pay, plus interest, and benefits (less interim earnings and benefits) to which she would be entitled had she been hired in September 2011. The AJ ordered that the Agency provide EEO training for management empl oyees at the Chicago facility. The AJ also ordered the Agency
to post at the Chicago facility a Notice concerning the discrimination that occurred there. Additionally, the AJ ordered that the parties discuss settlement of attorney’s fees and file a
statement on February 28, 2014, informing her of the parties’ respective settlement positions.
The AJ stated that assuming the parties do not settle the fees, Complainant’s attorney shall
submit a verified statement of attorney’s fees to her and the Agency r epresentative within thirty
days of receipt of her decision. The AJ denied Complainant’s request for travel costs stating
that these damages were too speculative to be awarded. The AJ noted that compensatory
damages are not available in cases under the A DEA. With regard to an award of
compensatory damages under Title VII, the AJ found that the evidence of emotional distress
was too speculative to warrant an award.
The Agency subsequently issued a final order dated March 24, 2014, adopting the AJ’s finding
that Complainant proved that the Agency subjected her to discrimination as alleged. The
Agency stated that it needed to partially modify the relief granted and offer a substantially
equivalent position because the organization and functions have changed in the last three years.
According to the Agency, when the EEO Manager position became vacant on October 6, 2013,
it decided to change the title of the position and to clarify the functions of the position. The
Agency stated that the position to whic h Complainant applied no longer exist ed.
The Agency extended an offer of employment for the position of Equal Employment
Opportunity Specialist, GS -0260- 13, Region 5, in Chicago, no later than April 15, 2014. The
Agency stated that Complainant will have fifteen days from receipt of the employment offer to
either accept or decline the offer. The Agency stated that if the offer is accepted, appointment
will be retroactive to September 2011, and Complainant will be awarded back pay plus interest (less int erim earnings and benefits), from September 2011 to the date of acceptance of the offer
of employment. If the offer is declined, the Agency stated that Complainant will be awarded a sum equal to the back pay and interest she would have received (less inte rim earnings and
benefits), from September 2011 to the date the offer of employment is declined.
With respect to Complainant’s attorney’s Petition for Interim Attorney’s Fees and Cost , the
Agency asserted that Complainant’s attorney failed to comply with the AJ’s Order becaus e he
did not submit a verified statement of attorney’s fees and cost, as well as evidence of being
licensed. The Agency stated that Complainant’s representative’s failure to comply with the
AJ’s Order prevents it from implementin g this portion of the AJ’s Order.
Additionally, the Agency stated that its Region 5 will enroll management employees at the
Chicago facility in appropriate EEO training no later than May 1, 2014. The Agency further stated that the Notice to Employees co ncerning the finding of discrimination will be posted at
the Chicago facility.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency failed to comply with the AJ’s Decision.
Complainant argues that the Agency placed her in a position that is not the same as that which
she sought in the instant complaint. Complainant maintains that the EEO Manager position she sought manages a Federal employment opportunity program. In contrast, Complainant claims that the Equal Employment Opportunity Specialist position she received is in support of the
Equal Employment Manager’s work in Region 5. Complainant asserts that the latter position has no supervisory responsibilities in comparison with the EEO Manager position. Complainant states that the Agency further informed her that it does not owe her any back pay.
Complainant notes that the Agency has taken the position that she earned more with the United
States Postal Service from September 11, 2011 to May 5, 2014, than she would have earned
with the Agency during that time span. Complainant contends that the Agency owes her for all
pay from Sep tember 11, 2011, plus step increases equivalent to approximately a three percent
increase per year and interest at the rate of three percent for all time up to the payment to Complainant, minus earnings from the United States Postal Service. Additionally,
Complainant challenges the AJ’s denial of her attorney’s Petition for Interim Attorney’s Fees
and Cost s. Finally, Complainant contends that the AJ denied her the right to a complete and
fair hearing by not sending the parties copies of the rec ord produce d at the hearing stag e of the
process, including the hearing transcript.
In response, the Agency asserts that it offered Complainant a substantially equivalent position because the original position no longer exists. The Agency maintains that the change in title of
the EEO Manager position to EEO Specialist was based on a routine agency business reason.
According to the Agency, despite its good faith efforts, any delay in paying Complainant back
pay result ed from circumstances beyond its control. The Ag ency argues that Complainant’s
counsel waived attorney’s fees when he breached his duty to proceed in good faith by failing to
timely submit a verified statement of attorney’s fees and costs as ordered by the AJ. The
Agency further asserts that Complainan t has not demonstrated any harm associated with any
delays in her receipt of copies of the record produced at the hearing stage of the process,
including the hearing transcript.
The Agency notes that Complainant began employment at the Agency in the offe red EEO
Specialist position on June 4, 2014. In support of its assertion that the position is substantially equivalent to that which Complainant sought, the Agency states that the position description coversheet for the EEO Manager position clearly states that the position had no supervisory
status. The Agency lists many of the duties of her EEO Specialist position and concludes that
Complainant’s role and duties and responsibilities as an EEO Specialist are substantially
equivalent to that of the EEO Manager position.
The Agency explains its delay in paying back pay as being due to its change of its human
resources and payroll system from the Defense Finance and Accounting System to the Department of Interior’s Interior Business Center; the delayed receipt of Complainant’s W2s
and timecards from Complainant’s former employer, the United States Postal Service; and the
fact that payroll records must be obtained from the United States Postal Service. As for the AJ’s denial of Complainant’s attorney’s Petition for Interim At torney’s Fees and Cost , the
Agency points out that Complainant’s attorney failed to submit a verified statement of attorney’s fees and costs to the AJ or the Agency representative within thirty days of receipt of
the AJ’s decision.
Legal Analysis:
the Commission AFFIRMS the Agency’s final order .
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an EEO/ADR
Specialist at the Agency’s work facility in Indianapolis .
On November 17, 2011, Complainant filed an EEO complaint wherein she claimed that the
Agency discriminated against her on the bases of her race (African -American), sex (femal e),
and age (57) when in August 2011, she was not selected for an EEO Manager , GS-13,
position. 2
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non- parties and the Commission’s website.
2 Complainant withdrew her claim of reprisal with regard to her nonselection.
At the | Rhea H.,1
Complainant,
v.
Gina McCarthy,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 0120142029
Hearing No. 440- 2012- 00153X
Agency No. 2012- 0008- R05
DECISION
Complainant filed an appeal from the Agency’s March 24, 2014, final order concerning her
equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq
.,
and the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq.
For the following reasons, the Commission AFFIRMS the Agency’s final order .
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an EEO/ADR
Specialist at the Agency’s work facility in Indianapolis .
On November 17, 2011, Complainant filed an EEO complaint wherein she claimed that the
Agency discriminated against her on the bases of her race (African -American), sex (femal e),
and age (57) when in August 2011, she was not selected for an EEO Manager , GS-13,
position. 2
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non- parties and the Commission’s website.
2 Complainant withdrew her claim of reprisal with regard to her nonselection.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing
and the AJ held a hearing on January 16, 2014, and issued a decision on February 7, 2014.
The AJ found that discrimination occurred with regard to each of the alleged bases . The AJ
ordered the Agency to hire Complainant into the EE O Manager position and provide her with
back pay, plus interest, and benefits (less interim earnings and benefits) to which she would be entitled had she been hired in September 2011. The AJ ordered that the Agency provide EEO training for management empl oyees at the Chicago facility. The AJ also ordered the Agency
to post at the Chicago facility a Notice concerning the discrimination that occurred there. Additionally, the AJ ordered that the parties discuss settlement of attorney’s fees and file a
statement on February 28, 2014, informing her of the parties’ respective settlement positions.
The AJ stated that assuming the parties do not settle the fees, Complainant’s attorney shall
submit a verified statement of attorney’s fees to her and the Agency r epresentative within thirty
days of receipt of her decision. The AJ denied Complainant’s request for travel costs stating
that these damages were too speculative to be awarded. The AJ noted that compensatory
damages are not available in cases under the A DEA. With regard to an award of
compensatory damages under Title VII, the AJ found that the evidence of emotional distress
was too speculative to warrant an award.
The Agency subsequently issued a final order dated March 24, 2014, adopting the AJ’s finding
that Complainant proved that the Agency subjected her to discrimination as alleged. The
Agency stated that it needed to partially modify the relief granted and offer a substantially
equivalent position because the organization and functions have changed in the last three years.
According to the Agency, when the EEO Manager position became vacant on October 6, 2013,
it decided to change the title of the position and to clarify the functions of the position. The
Agency stated that the position to whic h Complainant applied no longer exist ed.
The Agency extended an offer of employment for the position of Equal Employment
Opportunity Specialist, GS -0260- 13, Region 5, in Chicago, no later than April 15, 2014. The
Agency stated that Complainant will have fifteen days from receipt of the employment offer to
either accept or decline the offer. The Agency stated that if the offer is accepted, appointment
will be retroactive to September 2011, and Complainant will be awarded back pay plus interest (less int erim earnings and benefits), from September 2011 to the date of acceptance of the offer
of employment. If the offer is declined, the Agency stated that Complainant will be awarded a sum equal to the back pay and interest she would have received (less inte rim earnings and
benefits), from September 2011 to the date the offer of employment is declined.
With respect to Complainant’s attorney’s Petition for Interim Attorney’s Fees and Cost , the
Agency asserted that Complainant’s attorney failed to comply with the AJ’s Order becaus e he
did not submit a verified statement of attorney’s fees and cost, as well as evidence of being
licensed. The Agency stated that Complainant’s representative’s failure to comply with the
AJ’s Order prevents it from implementin g this portion of the AJ’s Order.
Additionally, the Agency stated that its Region 5 will enroll management employees at the
Chicago facility in appropriate EEO training no later than May 1, 2014. The Agency further stated that the Notice to Employees co ncerning the finding of discrimination will be posted at
the Chicago facility.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency failed to comply with the AJ’s Decision.
Complainant argues that the Agency placed her in a position that is not the same as that which
she sought in the instant complaint. Complainant maintains that the EEO Manager position she sought manages a Federal employment opportunity program. In contrast, Complainant claims that the Equal Employment Opportunity Specialist position she received is in support of the
Equal Employment Manager’s work in Region 5. Complainant asserts that the latter position has no supervisory responsibilities in comparison with the EEO Manager position. Complainant states that the Agency further informed her that it does not owe her any back pay.
Complainant notes that the Agency has taken the position that she earned more with the United
States Postal Service from September 11, 2011 to May 5, 2014, than she would have earned
with the Agency during that time span. Complainant contends that the Agency owes her for all
pay from Sep tember 11, 2011, plus step increases equivalent to approximately a three percent
increase per year and interest at the rate of three percent for all time up to the payment to Complainant, minus earnings from the United States Postal Service. Additionally,
Complainant challenges the AJ’s denial of her attorney’s Petition for Interim Attorney’s Fees
and Cost s. Finally, Complainant contends that the AJ denied her the right to a complete and
fair hearing by not sending the parties copies of the rec ord produce d at the hearing stag e of the
process, including the hearing transcript.
In response, the Agency asserts that it offered Complainant a substantially equivalent position because the original position no longer exists. The Agency maintains that the change in title of
the EEO Manager position to EEO Specialist was based on a routine agency business reason.
According to the Agency, despite its good faith efforts, any delay in paying Complainant back
pay result ed from circumstances beyond its control. The Ag ency argues that Complainant’s
counsel waived attorney’s fees when he breached his duty to proceed in good faith by failing to
timely submit a verified statement of attorney’s fees and costs as ordered by the AJ. The
Agency further asserts that Complainan t has not demonstrated any harm associated with any
delays in her receipt of copies of the record produced at the hearing stage of the process,
including the hearing transcript.
The Agency notes that Complainant began employment at the Agency in the offe red EEO
Specialist position on June 4, 2014. In support of its assertion that the position is substantially equivalent to that which Complainant sought, the Agency states that the position description coversheet for the EEO Manager position clearly states that the position had no supervisory
status. The Agency lists many of the duties of her EEO Specialist position and concludes that
Complainant’s role and duties and responsibilities as an EEO Specialist are substantially
equivalent to that of the EEO Manager position.
The Agency explains its delay in paying back pay as being due to its change of its human
resources and payroll system from the Defense Finance and Accounting System to the Department of Interior’s Interior Business Center; the delayed receipt of Complainant’s W2s
and timecards from Complainant’s former employer, the United States Postal Service; and the
fact that payroll records must be obtained from the United States Postal Service. As for the AJ’s denial of Complainant’s attorney’s Petition for Interim At torney’s Fees and Cost , the
Agency points out that Complainant’s attorney failed to submit a verified statement of attorney’s fees and costs to the AJ or the Agency representative within thirty days of receipt of
the AJ’s decision.
ANALYSIS AND FINDINGS
The Commission has consistently held that a substantially equivalent position is one which is similar in duties, responsibilities and location (reasonable commuting distance) to the position
for which the Complainant originally applied. See e.g.,
Monroig v.U.S. Commission on Civil
Rights , EEOC Petition No. 04A40029 (September 29, 2005); Spicer v. Department of the
Interior , EEOC Petition No. 04980007 (September 24, 1998); Patterson v. Department of the
Agriculture , EEOC Request No. 05940079 (October 21, 1994). The burden is on the Agency
to establish that the position offered to Complainant in fact is substantially equivalent to the position lost.
See Rai v. Department of the Interior , EEOC Appeal No. 01901186 (May 17,
1990).
Complainant contends that the Agency placed her in a position that is not the same as that
which she sought in the instant complaint. Complainant argues that the EEO Manager position
she sought manages a Federal employment opportunity program. According to Complainant,
the Equal Employment Opportunity Specialist position she received is in support of the Equal Employment Manager’s work in Region 5. Complainant maintains that the position she
received has no supervisory responsibilities in comparison with the EEO Manager position.
The Agency asserts that it offered Complainant a substantially equivalent position because the original position no longer exists. The Agency points out that the position description
coversheet for the EEO Manager position states that the position had no supervisory status.
The Agency argues that Complainant’s role and duties and responsibilities as an EEO
Specialist are substantially equivalent to that of the EEO Manager position.
The position description for Complainant’s EEO S pecialist position states that her role is to 1)
advise regional supervisors and senior management officials on the full range of EEO
concerns; and 2) administer and coordinate the informal EEO complaints processing system…
Complainant’s duties as an EEO Specialist include but are not limited to 1) ensuring the timely
processing of informal discrimination complaints; 2) maintaining the electronic and paper case files for informal complaints; 3) advising EEO Counselors of individual case issues and bases;
4) managing E EO Counselor development/training; 5) attempting informal resolution of the
complaint when appropriate; 6) recommending disposition of the issue(s) of alleged
discrimination; 7) reviewing policies, proposed legislation, court decisions and regulations to
determine their impact to the Regional Agency Civil Rights Program; 8) managing the regional
portion of the National Complaint System; and 9) conducting studies and analyses of the region
for reports to the Region 5 Office of Civil Rights Direct or and/or Deputy Regional
Administrator.
The duties of the EEO Manager posit ion that Complainant sought include:
Prepares and revises plans, procedures, regulations, recommendations, or corrective action needed.
Arranges for the proper training and provides leadership and administrative supervision
to equal employment opportunity advisory committees, equal employment opportunity
technical assistants, and other specifically designated equal employment opportunity
staff personnel involved in the planni ng, counseling, investigative, personnel, and legal
aspects of equal employment opportunity;
Directs and provides equal employment opportunity expertise in the special program
areas of upward mobility, Federal women’s program, Hispanic employment program,
and the worker -trainee opportunities program;
Counsels employees and applicants who believe they have been discriminated against;
supervises the timely, fair and impartial consideration and disposition of complaints;
schedules prompt investigation of com plaints, negotiating for informal adjustment
whenever possible, maintains and secures all documents pertinent to informal and
formal complaints;
Arranges for a formal hearing where requested by the complainant; makes the final
decision when authorized for the chairman on formal discrimination complaints based
on evaluations and information in the complaint file;
Prepares, coordinates, and issues the agency’s annual affirmative action plan; assures
that the plan complies with the purpose of equal employment opportunity;
Participates with schools, universities, and other public and private groups to exchange
ideas, solicit assistance, communicate the equal employment opportunity policy and
obtain sources of candidates.
Upon review of the duties of these tw o positions, we find that the EEO Specialist position was
substantially equivalent to that of the EEO Manager position. There appear to be some differences in responsibility but given the EEO Manager position no longer exists, the EEO Specialist position was close in nature and thus was appropriately offered to Complainant.
With respect to the issue of back pay, we do not observe any documentation in the record
indicating the Agency has taken the position it does not owe Complainant any back pay. As to
the processing of the back pay request, t he evidence indicates that the delay in issuing
Complainant back pay has not been attributable to bad faith or dilatory tactics on the part of the
Agency. Rather, the record illustrates that delays have occurred d ue to the fact that there was
a delay in receiving Complainant’s W2s and timecards from the United States Postal Service,
payroll records must be obtained from the United States Postal Service and there was a change
in the Agency’s human resources and payr oll system from the Defense Finance and Accounting
System to the Department of Interior’s Business Center. In light of these circumstances, we
find that the Agency has not failed to comply with the AJ’s Order with regard to the issuance
of back pay. We r eiterate the AJ’s Order regarding back pay to the extent the Agency has not
yet issued Complainant the amount owed.
As for the AJ’s denial of Complainant’s attorney’s Petition for Interim Attorney’s F ees and
Cost, the Agency points out that Complainant’s attorney failed to submit a verified statement of
attorney’s fees and costs to the AJ or the Agency representative within thirty days of receipt of
the AJ’s decision. The AJ’s Decision was issued on February 7, 2014. The record indicates
that Complainant’s attorney submitted his Petition on April 5, 2014. We find that
Complainant’s attorney has offered no persuasive grounds for the untimely submission of the
Petition.
With regard to Complainant’s contention that the AJ denied her the right to a complete and fair
hearing by not sending the parties copies of the record produced at the hearing stage of the
process, including the hearing transcript, we find that Complainant has not demonstrated any
harm associated with any delays in her receipt of copies of the record produced at the hearing
stage of the process, including the hearing transcript.
CONCLUSION
The Agency’s determination that it has thus far acted in compliance with the AJ’s Order is
AFFIRMED. To the extent the Agency has not alr eady done so, the Agency shall comply with
the AJ’s Order on back pay as set forth below.
ORDER
To the extent the Agency has not already done so:
The Agency shall determine the amount of back pay, plus interest, and other benefits due
Complainant, less any interim earnings.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
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 77960, Washington, DC
20013. 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. 2 9 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 enforcemen t, will be terminated . See 29 C.F.R.
§ 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing a rguments 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 ti mely 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), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 reques t 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
(T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency
to continue its administrative processing of a portion of your complaint. You have the right to
file a civil action in an appropriate United States District Court within ninety (90) c alendar
days from the date that you receive this decision on both that portion of your complaint which
the Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. In the alternative, you m ay file a civil action after one
hundred and eighty (180) calendar days of the date you filed your complaint with the Agency,
or your appeal with the Commission, until such time as the Agency issues its final decision on
your complaint. If you file a civi l 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 proce ssing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you.
You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
November 23, 2016
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214 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/2019003329.pdf | 2019003329.pdf | PDF | application/pdf | 21,738 | May 9, 2019 | Appeal Number: 2019003329
Case Facts:
On May 9, 2019, Compla inant f iled an app eal with the Equal Employment Oppor tunity
Commission (EEOC or Commission ), pursuant to 29 C.F.R. § 1614.403(a) , from the Agency’s
May 6, 2019, f inal decision concerning her equal employment opportun ity (EEO) complaint
alleging employment disc rimination in violation of Title VII of the C ivil Rights Act of 1964
(Title VII), as amended, 42 U.S .C. § 2000e et seq., and S ection 501 of the Rehabilitation Act
of 1973 (Rehabilita tion Act), as amended, 29 U.S.C. § 791 et seq. For the following r easons,
the Commission AFFIRM S the Agency’s f inal decision.
ISSUE PRES ENTED
The issue presented here in is whether the Agency prope rly dism issed Compla inant’s EEO
compla int.
1 This case has been ran domly assign ed a pseudonym which will repl ace Compla inant’s name
when the decision is published to non-par ties and the Comm ission ’s websit e.
2 In the present matte r, the Equal Employ ment Opportunity Commiss ion ( EEO C) is both the
respondent agency and the adjudi catory author ity. The Commission ’s adjudi catory func tion is
housed in an office that is separa te and independent f rom those offi ces cha rged with in-house
processing and resolut ion of disc rimina tion compla ints. For the purposes of this decision, the
term “Commission” or “EEOC” is used when referring to the adjudicatory authority and the
term “Agency” is used when referring to the respondent party to this action.
2 2019003329
BACKGROUND
Complainant work ed with the Agency as an Information Intake Representative (IIR) at its
Chicago, Illinois District Office. The Agency informed her on November 25, 2015, that she
would be terminated during her proba tionary period. In respons e, Complainant resigned from
the Agency effective November 25, 2015. Complainant filed an EEO complaint, namely Agency
No. 2016- 0014 , alleging that she was subjected to discrimination when she was construc tively
discharged when she was denied reasona ble accommoda tions and resigned in lieu of
termination. Complainant appeal ed this matter to the Commission. It has been docketed as
EEOC Appeal No. 0120180745.
Subsequent to her resignation, Complainant discovered that the Agency had included on her
Standard Form 50 (SF-50), issued on January 5, 2016, the reasons Complainant had given for
her resignation. Complainant characterized this information as “sensitive and personal”; it
referenced her disability, the Agency’s alleged failure to provide her with reasona ble
accommoda tion, her view that she had been constructively discharged, and her intention to file
a complaint against the Agency. Complainant contacted the Agency on several occasions to
obtain a revised SF-50 omitting this information. The record reflects that Complainant emailed
the Agency in July 2017. When she received no respons e, Complainant subm itted additional
emails and letters to the Agency in November 2017.
Follo wing her resignation from the Agency, Complainant sought employment with the United
States Custom s and Bord er Protection (CBP) under the Department of Homeland Security.
The CBP tendered Complainant a conditiona l offer of employment pending a background
investigation. As part of the background investigation, the CBP contacted the Agency. Follo wing
her backgr ound investigation, the CBP rescinded Complainant’s job offer. Complainant believes
that an Agency official provide d information which negatively affect ed her ability to secure
employment with the CBP. The record included an email from Complainant to a CBP official
(CBP Official) dated April 6, 2018, discussing the rescission of the job offer and the background
investigation.
During this period of time, Complainant tried to obtain information that would support her
claim of discrimination alleged in Agency No. 2016- 0014. To this end, Complainant subm itted
several requests for documents and information under the Freedom of Information Act (FOIA).
She believes that the Agency has continue d to subject her to unlawful retaliation in mishandling
and denying her FOIA requests.
Based on these incidents, Complainant contacted the EEO Couns elor via email dated
November 16, 2018, alleging unlawful retaliation. During the informal processing of the instant
matter, Complainant emailed the EEO Office on February 2, 2019, raising concerns with the
processing of Agency No. 2016- 0014. She attempted to amend the instant matter to include her
concerns regarding the EEO Office’s alleged misleading and false information provide d in
the processing of her prior EEO complaint.
3 2019003329
When the instant matter could not be resolve d informally, Complainant was issued a notice of
right to file a formal complaint. On March 2, 2019, Complainant filed an EEO complaint
alleging that the Agency discriminated against her on the basis of reprisal for prior protected
EEO activit y arising unde r Title VII and the Rehabilita tion Act when:
1. The Agency included the private and sensitive reasons for her resignation on her
SF-50. Complainant believed this was an intentiona l action to detract from her
character and influence other federal agencies from hiring her in the future.
2. Complainant learned that the Agency provide d false information to the CBP
background investigator that negatively affect ed her ability to secure employment
with the CBP.
3. On unspeci fied dates up to October 2018, the Agency mishandled Complainant’s
FOIA requests.
4. In October 2018, the Agency denied Complainant’s most recent FOIA request.
On May 6, 2019, the Agency issued its final decision dismissing Complainant’s EEO complaint
(Agency No. 2019- 0012 ). The Agency dismissed claim 1 pursua nt to 29 C.F.R.
§ 1614.107(a)(1) for failure to state a claim. The Agency held that Complainant failed to
assert a cognizable claim and that the SF-50 was drafted pursua nt to guidance issued by the
Office of Personne l Management (OPM).
The Agency also dismissed claims 1 and 2 pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely
EEO Couns elor contact. The Agency found that Complainant becam e aware of claim 1 on
January 5, 2016, the date the S F-50 was issued. As to c laim 2, the Ag ency determined that
Complainant became aware that an Agency official provided information for the CBP
background investigation as evidenced in the April 6, 2018 email. The record show ed that
Complainant contacted the EEO Couns elor by email on November 16, 2018. The Agency noted
that Complainant’s contact occurre d well outside of the 45-day time limit.
The Agency then dismissed claims 3 and 4 pursuant to 29 C.F.R. § 1614.107(a)(1) for failure
to state a claim. The Agency determined that Complainant was using the EEO complaint
process to collaterally attack the Agency’s FOIA process. The Agency stated that Complainant
was inappropri ately using the EEO complaint process to challenge events outside of the
Commission ’s jurisdiction.
Lastly, the Agency noted that Complainant had attempted to amend the instant complaint by
alleging claims of dissatisfaction with the processing of her prior EEO complaint. The Agency
dismissed these claims pursua nt to 29 C.F.R. § 1614.107(a)(8) as a spin- off complaint. The
Agency none theless addressed the claims of dissatisfaction pursuant to EEO MD-110, Chap.
IV § D, but found that the claims lacked merit.
4 2019003329
CONTENT IONS ON APPEAL
On appeal, Complainant maintained her claims that the Agency’s EEO Office subjected her to
unlawful retaliation regarding the processi ng of her prior EEO complaint. She levied
accus ations against the EEO Director and the contractor EEO Couns elor. She also argued that
the Agency imprope rly investigated her prior EEO complaint.
Complainant then argued that she did not receive the CBP investigation until March 2019. As
such, she claimed that did not becom e aware of the discrimination alleged in claim 2 until
March 2019. She asserted that claim 2 therefore was raised in a timely manner. In addition,
she stated that her prior management official with the Agency provide d incorrect dates to the
CBP pursua nt to their background investigation. Complainant asserted that the management
official’s false information was the basis for the withdr awal of the CBP’s offer of employment.
Based on the Agency’s alleged imprope r processing and false statements, Complainant asked
that the Commission reverse the dismissal of her EEO complaint.
The Agency responde d by arguing that its dismissal of the complaint was appropri ate. The
Agency asked that the Commission therefore affirm its final decision.
ANALYS IS AND FINDINGS
Dismi ssal of Claims 1 and 2
EEO C’s regulations require that complaints of discrimination be broug ht to the attention of an
Equal Employment Opportuni ty Couns elor “within 45 days of the date of the matter alleged to
be discriminatory or, in the case of personne l action, within 45 days of the effective date of the
action .” 29 C.F.R. § 1614.105(a)(1) . The Commission has long applied a “reasona ble suspi cion”
standard, viewed from the perspective of the complainant, to determine when the 45-day
limitation period is triggered. See, e.g., Complainant v. U.S. Postal Serv., EEOC Appeal No.
0120093 169 (June 27, 2014) (citing Howa rd v. Dep’t of the Navy, EEOC Request No. 05970852
(Feb. 11, 1999) , citing Ball v. U.S. Postal Serv., EEOC Appeal No. 01871261
(July 6, 1988) , req. for recon. den., EEOC Request No. 05980247 (July 15, 1988)). Thus, the
time-limitation is not triggered until a complainant should reasona bly suspect discrimination,
even if all the facts that might support the charge of discrimination have not yet become
apparent.
As for claim 1, the record includes several forms of corresponde nce from Complainant requesting
the Agency to change her SF-50 issued on January 5, 2016. The record shows that Complainant
contacted the Agency on July 11, 2017, seeking changes to her SF-50. As such, we find that
Complainant was aware of the situation as early as July 2017. Howe ver, she did not contact
the EEO Couns elor until November 16, 2018, well beyond the 45 calendar-day
5 2019003329
time-limit. Complainant has provide d no reason to toll the time-limit. As such, we affirm the
dismissal of claim 1.3
In claim 2, Complainant argued on appeal that she was not aware of the false information
provide d by an Agency official (Agency Official) to the CBP until she receiv ed a copy of the
background investigation in March 2019. The record shows otherwise.
Complainant provi ded several documents in support of her appeal. Included within the
documents was a copy of an email she sent to the CBP Official dated April 6, 2018. In this
email, Complainant provide d the CBP Official with documents pertaining to her start date with
the Agency.
After a review of the documents as a whol e, we find that Complainant clearly believed that the
CBP withdr ew its offer of employment following its background investigation. More
specifically, as of at least April 6, 2018, Complainant was aware that the Agency Official
provide d what she believed to be false information regarding her start date. We find that
Complainant should have reasona bly suspected discrimination by April 2018, and t herefore, we
find that the time-limitation was trigg ered in April 2018. Complainant subsequently receiv ed
documents suppor ting her belief that the Agency Official provide d misinformation to the CBP.
Despite reasona bly suspecting discrimination in April 2018, Complainant waited until she
receiv ed additional information from the CBP to contact the EEO Couns elor in March 2019. As
Complainant did not contact the EEO Counselor within the 45-day time-limit, we find that the
Agency properly dismissed claim 2 pursua nt to 29 C.F.R. § 1614 .107(a) (2).
Dismi ssal of Claims 3 and 4
The | U.S. EQUAL EMPLOY MENT OPPORT UNITY C OMMISSI ON
Washington, DC 20507
Nadine M.,1
Compla inant,
v.
Janet Dhillon,
Chair,
Equal Employment Opportuni ty Commission ,2
Agency.
Appeal No. 2019003329
Agency No. 2019-0012
DECISION
On May 9, 2019, Compla inant f iled an app eal with the Equal Employment Oppor tunity
Commission (EEOC or Commission ), pursuant to 29 C.F.R. § 1614.403(a) , from the Agency’s
May 6, 2019, f inal decision concerning her equal employment opportun ity (EEO) complaint
alleging employment disc rimination in violation of Title VII of the C ivil Rights Act of 1964
(Title VII), as amended, 42 U.S .C. § 2000e et seq., and S ection 501 of the Rehabilitation Act
of 1973 (Rehabilita tion Act), as amended, 29 U.S.C. § 791 et seq. For the following r easons,
the Commission AFFIRM S the Agency’s f inal decision.
ISSUE PRES ENTED
The issue presented here in is whether the Agency prope rly dism issed Compla inant’s EEO
compla int.
1 This case has been ran domly assign ed a pseudonym which will repl ace Compla inant’s name
when the decision is published to non-par ties and the Comm ission ’s websit e.
2 In the present matte r, the Equal Employ ment Opportunity Commiss ion ( EEO C) is both the
respondent agency and the adjudi catory author ity. The Commission ’s adjudi catory func tion is
housed in an office that is separa te and independent f rom those offi ces cha rged with in-house
processing and resolut ion of disc rimina tion compla ints. For the purposes of this decision, the
term “Commission” or “EEOC” is used when referring to the adjudicatory authority and the
term “Agency” is used when referring to the respondent party to this action.
2 2019003329
BACKGROUND
Complainant work ed with the Agency as an Information Intake Representative (IIR) at its
Chicago, Illinois District Office. The Agency informed her on November 25, 2015, that she
would be terminated during her proba tionary period. In respons e, Complainant resigned from
the Agency effective November 25, 2015. Complainant filed an EEO complaint, namely Agency
No. 2016- 0014 , alleging that she was subjected to discrimination when she was construc tively
discharged when she was denied reasona ble accommoda tions and resigned in lieu of
termination. Complainant appeal ed this matter to the Commission. It has been docketed as
EEOC Appeal No. 0120180745.
Subsequent to her resignation, Complainant discovered that the Agency had included on her
Standard Form 50 (SF-50), issued on January 5, 2016, the reasons Complainant had given for
her resignation. Complainant characterized this information as “sensitive and personal”; it
referenced her disability, the Agency’s alleged failure to provide her with reasona ble
accommoda tion, her view that she had been constructively discharged, and her intention to file
a complaint against the Agency. Complainant contacted the Agency on several occasions to
obtain a revised SF-50 omitting this information. The record reflects that Complainant emailed
the Agency in July 2017. When she received no respons e, Complainant subm itted additional
emails and letters to the Agency in November 2017.
Follo wing her resignation from the Agency, Complainant sought employment with the United
States Custom s and Bord er Protection (CBP) under the Department of Homeland Security.
The CBP tendered Complainant a conditiona l offer of employment pending a background
investigation. As part of the background investigation, the CBP contacted the Agency. Follo wing
her backgr ound investigation, the CBP rescinded Complainant’s job offer. Complainant believes
that an Agency official provide d information which negatively affect ed her ability to secure
employment with the CBP. The record included an email from Complainant to a CBP official
(CBP Official) dated April 6, 2018, discussing the rescission of the job offer and the background
investigation.
During this period of time, Complainant tried to obtain information that would support her
claim of discrimination alleged in Agency No. 2016- 0014. To this end, Complainant subm itted
several requests for documents and information under the Freedom of Information Act (FOIA).
She believes that the Agency has continue d to subject her to unlawful retaliation in mishandling
and denying her FOIA requests.
Based on these incidents, Complainant contacted the EEO Couns elor via email dated
November 16, 2018, alleging unlawful retaliation. During the informal processing of the instant
matter, Complainant emailed the EEO Office on February 2, 2019, raising concerns with the
processing of Agency No. 2016- 0014. She attempted to amend the instant matter to include her
concerns regarding the EEO Office’s alleged misleading and false information provide d in
the processing of her prior EEO complaint.
3 2019003329
When the instant matter could not be resolve d informally, Complainant was issued a notice of
right to file a formal complaint. On March 2, 2019, Complainant filed an EEO complaint
alleging that the Agency discriminated against her on the basis of reprisal for prior protected
EEO activit y arising unde r Title VII and the Rehabilita tion Act when:
1. The Agency included the private and sensitive reasons for her resignation on her
SF-50. Complainant believed this was an intentiona l action to detract from her
character and influence other federal agencies from hiring her in the future.
2. Complainant learned that the Agency provide d false information to the CBP
background investigator that negatively affect ed her ability to secure employment
with the CBP.
3. On unspeci fied dates up to October 2018, the Agency mishandled Complainant’s
FOIA requests.
4. In October 2018, the Agency denied Complainant’s most recent FOIA request.
On May 6, 2019, the Agency issued its final decision dismissing Complainant’s EEO complaint
(Agency No. 2019- 0012 ). The Agency dismissed claim 1 pursua nt to 29 C.F.R.
§ 1614.107(a)(1) for failure to state a claim. The Agency held that Complainant failed to
assert a cognizable claim and that the SF-50 was drafted pursua nt to guidance issued by the
Office of Personne l Management (OPM).
The Agency also dismissed claims 1 and 2 pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely
EEO Couns elor contact. The Agency found that Complainant becam e aware of claim 1 on
January 5, 2016, the date the S F-50 was issued. As to c laim 2, the Ag ency determined that
Complainant became aware that an Agency official provided information for the CBP
background investigation as evidenced in the April 6, 2018 email. The record show ed that
Complainant contacted the EEO Couns elor by email on November 16, 2018. The Agency noted
that Complainant’s contact occurre d well outside of the 45-day time limit.
The Agency then dismissed claims 3 and 4 pursuant to 29 C.F.R. § 1614.107(a)(1) for failure
to state a claim. The Agency determined that Complainant was using the EEO complaint
process to collaterally attack the Agency’s FOIA process. The Agency stated that Complainant
was inappropri ately using the EEO complaint process to challenge events outside of the
Commission ’s jurisdiction.
Lastly, the Agency noted that Complainant had attempted to amend the instant complaint by
alleging claims of dissatisfaction with the processing of her prior EEO complaint. The Agency
dismissed these claims pursua nt to 29 C.F.R. § 1614.107(a)(8) as a spin- off complaint. The
Agency none theless addressed the claims of dissatisfaction pursuant to EEO MD-110, Chap.
IV § D, but found that the claims lacked merit.
4 2019003329
CONTENT IONS ON APPEAL
On appeal, Complainant maintained her claims that the Agency’s EEO Office subjected her to
unlawful retaliation regarding the processi ng of her prior EEO complaint. She levied
accus ations against the EEO Director and the contractor EEO Couns elor. She also argued that
the Agency imprope rly investigated her prior EEO complaint.
Complainant then argued that she did not receive the CBP investigation until March 2019. As
such, she claimed that did not becom e aware of the discrimination alleged in claim 2 until
March 2019. She asserted that claim 2 therefore was raised in a timely manner. In addition,
she stated that her prior management official with the Agency provide d incorrect dates to the
CBP pursua nt to their background investigation. Complainant asserted that the management
official’s false information was the basis for the withdr awal of the CBP’s offer of employment.
Based on the Agency’s alleged imprope r processing and false statements, Complainant asked
that the Commission reverse the dismissal of her EEO complaint.
The Agency responde d by arguing that its dismissal of the complaint was appropri ate. The
Agency asked that the Commission therefore affirm its final decision.
ANALYS IS AND FINDINGS
Dismi ssal of Claims 1 and 2
EEO C’s regulations require that complaints of discrimination be broug ht to the attention of an
Equal Employment Opportuni ty Couns elor “within 45 days of the date of the matter alleged to
be discriminatory or, in the case of personne l action, within 45 days of the effective date of the
action .” 29 C.F.R. § 1614.105(a)(1) . The Commission has long applied a “reasona ble suspi cion”
standard, viewed from the perspective of the complainant, to determine when the 45-day
limitation period is triggered. See, e.g., Complainant v. U.S. Postal Serv., EEOC Appeal No.
0120093 169 (June 27, 2014) (citing Howa rd v. Dep’t of the Navy, EEOC Request No. 05970852
(Feb. 11, 1999) , citing Ball v. U.S. Postal Serv., EEOC Appeal No. 01871261
(July 6, 1988) , req. for recon. den., EEOC Request No. 05980247 (July 15, 1988)). Thus, the
time-limitation is not triggered until a complainant should reasona bly suspect discrimination,
even if all the facts that might support the charge of discrimination have not yet become
apparent.
As for claim 1, the record includes several forms of corresponde nce from Complainant requesting
the Agency to change her SF-50 issued on January 5, 2016. The record shows that Complainant
contacted the Agency on July 11, 2017, seeking changes to her SF-50. As such, we find that
Complainant was aware of the situation as early as July 2017. Howe ver, she did not contact
the EEO Couns elor until November 16, 2018, well beyond the 45 calendar-day
5 2019003329
time-limit. Complainant has provide d no reason to toll the time-limit. As such, we affirm the
dismissal of claim 1.3
In claim 2, Complainant argued on appeal that she was not aware of the false information
provide d by an Agency official (Agency Official) to the CBP until she receiv ed a copy of the
background investigation in March 2019. The record shows otherwise.
Complainant provi ded several documents in support of her appeal. Included within the
documents was a copy of an email she sent to the CBP Official dated April 6, 2018. In this
email, Complainant provide d the CBP Official with documents pertaining to her start date with
the Agency.
After a review of the documents as a whol e, we find that Complainant clearly believed that the
CBP withdr ew its offer of employment following its background investigation. More
specifically, as of at least April 6, 2018, Complainant was aware that the Agency Official
provide d what she believed to be false information regarding her start date. We find that
Complainant should have reasona bly suspected discrimination by April 2018, and t herefore, we
find that the time-limitation was trigg ered in April 2018. Complainant subsequently receiv ed
documents suppor ting her belief that the Agency Official provide d misinformation to the CBP.
Despite reasona bly suspecting discrimination in April 2018, Complainant waited until she
receiv ed additional information from the CBP to contact the EEO Couns elor in March 2019. As
Complainant did not contact the EEO Counselor within the 45-day time-limit, we find that the
Agency properly dismissed claim 2 pursua nt to 29 C.F.R. § 1614 .107(a) (2).
Dismi ssal of Claims 3 and 4
The EEOC regulation set forth at 29 C.F.R. § 1614.107(a)(1) provide s, in relevant part, that
an agency shall dismiss a complaint that fails to state a claim. EEO C regulations further
provide that an agency shall accept a complaint from any aggrieved employee or applicant for
employment who believes that he or she has been discriminated against by that agency because
of race, color, religion, sex, national origin, age, disabling condition, genetic information, or
reprisal. 29 C.F.R. §§ 1614.103, 1614.106( a). The Commission ’s federal sector case
3 We note that the Agency also dismisse d claim 1 pursua nt to 29 C.F.R. § 1614.107(a)(1) for
failure to state a claim. We have affirmed the dismissal of claim 1 on other grounds. Howe ver,
we would be remiss if we did not address the Agency’s applicatio n of 29 C.F.R.
§ 1614.107(a)(1) . We remind the Agency that, in claim 1, C omplainant alleged unlawful
retaliation when the Agency provide d Complainant with a negative reference contained within
the SF-50. We find that Complainant has presented a cognizable claim of unlawful retaliation.
Furth ermore, we note that the Agency’s articulated reason for the action in dispu te, i.e., that
the SF-50 w as issued in compliance with OPM regulations, goes to the merits of Complainant’s
complaint, and is irrelevant to the procedur al issue of whether she has stated a justiciable claim
unde r Title VII. See Osborne v. Dep’t of the Treasury, EEOC Request No. 0596011 1 (July 19,
1996); Lee v. U.S. Postal Serv., EEOC Request No. 05930220 (Aug. 12,
1993) ; Ferrazz oli v. U.S. Postal Serv., EEOC Request No. 0591064 2 (Aug. 15, 1991) .
6 2019003329
precede nt has long defined an “aggrieved employee” as one who suffers a present harm or loss
with respect to a term, condit ion, or privilege of employment for which there is a remedy.
Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994) .
In claims 3 and 4, Complainant alleged discrimination based on her dissatisfaction with the
Agency’s respons es to, and denial of, her FOIA requests. We note tha t such claims fall outside
of the Commission ’s jurisdiction. The Comm ission does not have enforcement authority over
the processing of FOIA requests . See Gaines v. Dep’t of the Navy, EEOC Request No. 05970321
(June 12, 1997) (Commission has no jurisdiction over the processi ng of FOIA requests and
appeals about the processing of his FOIA requests shoul d be brought unde r the appropri ate
FOIA regulations ). As su ch, Complainant should bring any appeals about the processi ng of
her FOIA requests unde r the appropri ate FOIA regulations. We therefore affirm the dismissal
of claims 3 and 4 pursu ant to 29 C.F.R. § 1614 .107(a)(1) for failure to state a claim.
Claims of Dissatisfaction in the processing of Agency No. 2016- 0014
EEOC Regulation 29 C.F.R. § 1614.107(a)(8) provide s for an Agency to dismiss an EEO
complaint that alleges the dissatisfaction with the processing of a previously filed complaint.
This is commonly referr ed to as a “spin -off” complaint.
Complainant claimed that the EEO Office mishandled her prior EEO complaint. She tried to
amend the instant complaint to include her claims of dissatisfaction in the processing of her
prior EEO complaint. In addition, on appeal, Complainant levied additional claims against
Agency EEO staff. Here, the claims at issue are classic examples of spin-off complaints as all
its allegations, conside red in their totality, raise allegations of Agency misconduc t in the
processing of Complainant’s previous ly filed complaint. As such, we find that these claims are
prope rly dismisse d pursuant to 29 C.F.R. § 1614.107(a)(8) .
In cases where Complainant’s concerns have not been resolve d informally with the Agency,
Complainant may present those concerns to the Commission at either of the following stages of
processing:
1. Where the complainant has requested a hearing, to the Commission ’s
Administr ative Judge when the complaint is unde r the jurisdiction of the
Administr ative Judg e; or
2. Where the complainant has not requested a hearing, to the Commission ’s Office of
Federal Operations (OFO) on appeal.
EEO MD-110 at 5-29. We note that Complainant’s prior EEO complaint, Agency No. 2016 -
0014, was addressed in EEOC Appeal No. 0120180 745. The Commission vacat ed the Agency’s
final decisi on and remanded the matter for further processi ng. The Agency has been ordered to
provide C omplainant with the rig ht to a hearing bef ore an Equal Employment
7 2019003329
Opport unity Commissi on Administr ative Judge (AJ) or an immediate final decision. Therefore,
we note that the appropri ate place for Complainant to raise her claims of improper processing
of her origi nal complaint and the motives therein is before the AJ if she opts for a hearing or
before the Commission on appeal follow ing the Agency’s final decision in that complaint.
CONC LUSION
Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision.
STATEM ENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, recons ider the decision in this case if the Complainant
or the Agency subm its a writte n 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 subst antial impact on the policies, practices,
or operations of the Agency.
Requests to reconside r, with suppor ting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A
party shall have twenty (20) calendar days of receipt of anothe r party’s timely request for
reconside ration in which to subm it a brief or statement in opposi tion. See 29 C.F.R.
§ 1614.405; Equal Employment Opportun ity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015) . All requests and arguments must be
subm itted to the Director, Office of Federal Operations, Equal Employment Opport unity
Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960,
Washingt on, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In
the absence of a legible postmark, the request to reconside r shall be deem ed timely filed if it is
receiv ed by mail within five days of the expiration of the applicable filing period. See 29
C.F.R. § 1614.604. The agency’s request must be subm itted in digital format via the EEO C’s
Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403( g). The request or
oppos ition 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 reconside ration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
suppor ting documentation must be subm itted with your request for reconside ration. The
Commission will consider requests for recons ideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604 (c).
8 2019003329
COMPLAINANT ’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropri ate United States Distric t 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 defenda nt 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 reconside r and also file a civil action, filing a civil action will
term inate the administrative processi ng of your complaint.
RIGHT TO REQUE ST COUNS EL (Z0815)
If you want to file a civil action but canno t pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil actio n without paying these fees or
costs. Similarly, if you cannot afford an attorn ey to represent you in the civil action, you may
request the court to appoint an attorn ey for you. You must submit the reque sts for waive r of
court costs or appoi ntment of an attorney directly to the court, not the Commissio n. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).
FOR THE COMMISSION:
/s/Bernadette B. Wilson
Bernadette B. Wilson
Executive Officer
Executive Secretariat
December 27, 2019
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215 | https://www.eeoc.gov/sites/default/files/decisions/2022_04_20/2022000144.pdf | 2022000144.pdf | PDF | application/pdf | 21,902 | Orval T .,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. | September 13, 2021 | Appeal Number: 2020001742
Background:
At the time of events giving rise to this complaint, Complainant worked as a Transportation
Security Officer at the Agency’s Midway International Airport in Chicago, Illinois. Two
Transportation Security Managers, (S2) and (S4),2 served as Complainant’s managers . Report of
Investigation (ROI) at 58, 116.
On March 14, 2018, Complainant filed a formal complaint alleging that the Agency subjected
him to harass ment on the bases of national origin (Mexico) and age (53), and in reprisal for prior
protected EEO activity (opposing discrimination and the instant EEO complaint), when:
1. in or around January 2018, management ridiculed Complainant in front of his
peers;
2. in or around January 2018, management restricted Complainant from working the
exit lanes without an explanation;
3. in or around January 2018, management stated, “[Complainant] should be more
careful now that [he had] a target on [his] back”;
4. in or around January 2018, management stated, “[Complainant] should have come
to us first instead of filing an EEO complaint. We would have handled it here”; and,
5. in or around January 2018, management threatened Complainant with disciplinary
actions.
At the conclus ion of the investigation, Complainant was provided a copy of the investigative file
and requested a hearing before an EEOC Administrative Judge ( AJ). Over Complainant’s
objections, the AJ granted the Agency’s October 4, 2019, motion for summary judgment and issued a decision finding no discrimination. The AJ found that Complainant did not raise any genuine issues of material fact. Regarding incidents 1 and 2, the AJ concluded that there was no
evidence that the alleged harassment was based on Complainant’s membership in any protected
class or that the alleged harassment was sufficiently severe or pervasive to create a hostile work environment.
As for event 4, the AJ found that S4’s comment was consistent with the Agency’s policy of
encouraging employees to resolve complaints at the lowest possible level and that it did not have a chilling effect on the EEO process, noting that “Complainant never alleged the statement was made with any hostility or to criticize.” AJ Decision (AJD) at 9. Regarding Complainant’s allegation that S2 said, “How dare you file a discrimination complaint,” the AJ found that S2 likely did not make the alleged comment, noting, “In the context of a heated exchange about
performance, it is logical to conclude that [S 2] told Complainant how dare he take that tone with
her, not ‘how dare he file a discrimination complaint.’” Id. Finally, the AJ found that, assuming
arguendo that S2 made the comment about Complainant having a target on his back ( incident 3),
2 For purposes of consistency, this decision will refer to the responsible management offici als in
the same manner as in the prior appellate decision.
“Complainant failed to tie the comment to his EEO activity. The comment does not on its face
discourage an employee from participating in the EEO process, and therefore is not a per se
violation of the reprisal law.” AJD at 10.
Complainant appealed the AJ’s decisio n, and the Agency subsequently issued its January 24,
2020 final order, fully implementing the AJ’s decision.3
On September 13, 2021, the Commission issued a decision affirming the AJ ’s decision to grant
the Agency’s motion for summary judgment regarding allegations 1 and 2 because Complainant failed to identify a genuine issue of material fact related to those incidents . However, the
Commission reversed the AJ’s summary judgment decision with respect to incidents 3- 5, finding
that the record required furt her development because there were genuine issues of material fact
and issues of credibility that require d a hearing. Orval T. v. Dep’t of Homeland Security, EEOC
Appeal No. 2020001742 (Sept. 13, 2021).
Our prior decision noted that the parties did not dispute that, after Complainant disclosed his EEO Counselor contact , S4 told Complainant that he should have approached management first .
The AJ found that, because Complainant “never alleged the statement was made with any
hostility or to criticize” a nd because S4 “did not exert any pressure on Complainant” to drop his
complaint, S4’s comment could not have a chilling effect on the EEO process. The Commission
disagreed , stating that the anti -retaliation provisions of Title VII encompass statements that are
reasonably likely to deter a reasonable employee from engaging in protected activity. T here is
no requirement that a supervisor must pressure a complainant to drop an EEO complaint or that a supervisor’s statement must be hostile or critical to creat e a chilling effect.
According to S4, “Any time a subordinate has a problem, we have always discussed that we try
to resolve it at the lowest possible level prior to taking it to the next level. If there is a complaint about a supervisor, you go to a manager, and then to the [ Deputy Assistant Federal Security
Directors ], or EEO. We encourage officers to address complaints at the lowest possible level,
before escalating it to a higher officer or EEO.” ROI at 125. In our prior decision, however, we
noted that 29 C.F.R. Part 1614 does not require an employee to approach a supervisor or
manager before raising an EEO complaint. T he Commission noted that Complainant indicated
that he may not have pursued an EEO complaint if he had known how easy the resolution would be, immediately before S4’s alleged statement, and that the AJ must assess the credibility of both
Complainant and S4 at a hearing.
The AJ co ncluded that, even if S2 commented that Complainant had a target on his back, since
the comment did not, on its face, discourage engaging in protected EEO activity, Complainant failed to establish a nexus between the remark and his EEO activity. The Commis sion found,
however, that in determining that Complainant failed to tie S2’s comment to his EEO activity, the AJ improperly weighed the evidence. Complainant alleged that, before making the target
3 The appellate decision noted that Complainant’s appeal was premature, but that the Agency’s
final order cured his initial premature appeal.
statement, S2 said, “How dare you file a discrimination com plaint.” The Commission found that
the AJ seemed to discredit this statement by C omplainant, which was consistent in his
investigative affidavit and his deposition, because he did not specifically cite this comment in his
formal complaint or in EEO counsel ing. Further, t he AJ found that, “In the context of a heated
exchange about performance, it is logical to conclude that [S2] told Complainant how dare he take that tone with her, not ‘how dare he file a discrimination complaint’ .” But in reaching this
conc lusion, reasoned the Commission, the AJ appear ed to be finding S 2’s version of events more
credible than Complainant’s. The AJ also concluded that, because Complainant told S2 and S4 that he had filed an EEO complaint on January 11, 2018, any comment by S2 about Complainant’s EEO complaint would
have likely occurred on that date. However, the Commission noted several discrepancies in the record regarding the timeline of the meetings and the alleged comments. For example,
Complainant stated, “I believe the meeting with [S2] and [S4] took place on or about January 24,
2018.” ROI at 59, 70. In addition, the record contains a January 26, 2018 memorandum to file,
in which S2 stated that she had a follow up meeting with Complainant and S4 on January 25, 2018, while S2 later testified at her deposition that the meeting occurred on January 24, 2018.
ROI at 253, S2 Deposition at 55. The Commission observed that, i f Complainant referenced his
EEO activity at the January 24 or 25 meeting and S4 comment ed at the meeting that
Complainant should have come to management first , this would undermine the AJ’s conclusion
that it was unlikely that S2 referenced Complainant’s protected activity at the January 11, 2018 meeting when Complainant revealed his prior a ctivity and S4 made a comment about it.
The Commission noted that, w hile the AJ did not explicitly cite incident 5 in her decision , she
included a reference to the January 25, 2018 meeting wherein Complainant was notified, in the
AJ’s words, that “improper conduct could be grounds for discipline.” The Commission concluded that there were simply too many unresolved issues that require further development of
the record and assessment as to the credibility of S2, S4, and Complainant , and remanded claims
3-5 for a hearing .
On October 13, 2021, the Agency requested a reconsideration of the Commission’s decision remanding incidents 3-5, alleging a clearly erroneous interpretations of material fact and law. For
event 3, the Agency argued that, assuming that a reference to Complainant having a “target” on
his back was in fact made, the meeting between Complainant and his managers concerned his
complaint about his superiors and subsequent investigation, and there is no evidence that th e
statement was related to Complainant’s initiation of an EEO complaint. The Agency also asserts
that it is undisputed that S2’s “expression of surprise ” at the filing of Complainant’s complaint
was made on January 9, 2018,
4 fifteen days before S2 allegedly advised Complainant on January
24, 2018, to be careful because he had a target on his back.
4 The Agency characterizes Complainant’s allegation t hat S2 stated , “How dare you file a
discrimination complaint” as her “ expression of surprise.”
Regarding event 4, the Agency acknowledges that S4 stat ed that Complainant should have
addressed his complaint with management prior to filing an EEO complaint , and argues that this
simply reflected S4’ s surprise at learning that Complainant had initiated an EEO action
concerning the same matter he had raised with management. However, contends the Agency,
there is no evidence that management was attempting to curtail Complainant’s rights under Title
VII, rather that management itself was simply attempting to resolve Complainant’s concerns.
The Agency a rgues that S4’s statement w ould not have dissuaded a reasonable person from
pursuing the EEO process , and that any time a manager uses the word or acron ym EEO, or
simply addresses the EEO process, it does not constitute per se reprisal .
With respect to i ncident 5, the Agency notes that the Commission appears to have determined
there is a question of material fact regarding Complainant’s reprisal claim , but argues that it did
not articulate nor analyze such a question in its decision. The Agency asserts that S2 and S4 investigated a complaint that Complainant allegedly harassed contract employees, and that even if they told Complainant that he could be disciplined and this could be considered a threat, it was
conditional upon Complainant having engaged in harassing conduct and not at all conditioned upon his protected EEO activity. The Agency claims that there is no evidence that S2 ’s
conclusion of her investigation, with an admonition to Complainant concerning future activity at the checkpoint, was connected to his EEO activity. Complainant opposed the Agency’s request , but he did not offer specific argument s.
Legal Analysis:
EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). The
Agency’s request for reconsideration is DENIED.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Transportation
Security Officer at the Agency’s Midway International Airport in Chicago, Illinois. Two
Transportation Security Managers, (S2) and (S4),2 served as Complainant’s managers . Report of
Investigation (ROI) at 58, 116.
On March 14, 2018, Complainant filed a formal complaint alleging that the Agency subjected
him to harass ment on the bases of national origin (Mexico) and age (53), and in reprisal for prior
protected EEO activity (opposing discrimination and the instant EEO complaint), when:
1. in or around January 2018, management ridiculed Complainant in front of his
peers;
2. in or around January 2018, management restricted Complainant from working the
exit lanes without an explanation;
3. in or around January 2018, management stated, “[Complainant] should be more
careful now that [he had] a target on [his] back”;
4. in or around January 2018, management stated, “[Complainant] should have come
to us first instead of filing an EEO complaint. We would have handled it here”; and,
5. in or around January 2018, management threatened Complainant with disciplinary
actions.
At the conclus ion of the investigation, Complainant was provided a copy of the investigative file
and requested a hearing before an EEOC Administrative Judge ( AJ). Over Complainant’s
objections, the AJ granted the Agency’s October 4, 2019, motion for summary judgment and issued a decision finding no discrimination. The AJ found that Complainant did not raise any genuine issues of material fact. Regarding incidents 1 and 2, the AJ concluded that there was no
evidence that the alleged harassment was based on Complainant’s membership in any protected
class or that the alleged harassment was sufficiently severe or pervasive to create a hostile work environment.
As for event 4, the AJ found that S4’s comment was consistent with the Agency’s policy of
encouraging employees to resolve complaints at the lowest possible level and that it did not have a chilling effect on the EEO process, noting that “Complainant never alleged the statement was made with any hostility or to criticize.” AJ Decision (AJD) at 9. Regarding Complainant’s allegation that S2 said, “How dare you file a discrimination complaint,” the AJ found that S2 likely did not make the alleged comment, noting, “In the context of a heated exchange about
performance, it is logical to conclude that [S 2] told Complainant how dare he take that tone with
her, not ‘how dare he file a discrimination complaint.’” Id. Finally, the AJ found that, assuming
arguendo that S2 made the comment about Complainant having a target on his back ( incident 3),
2 For purposes of consistency, this decision will refer to the responsible management offici als in
the same manner as in the prior appellate decision.
“Complainant failed to tie the comment to his EEO activity. The comment does not on its face
discourage an employee from participating in the EEO process, and therefore is not a per se
violation of the reprisal law.” AJD at 10.
Complainant appealed the AJ’s decisio n, and the Agency subsequently issued its January 24,
2020 final order, fully implementing the AJ’s decision.3
On September 13, 2021, the Commission issued a decision affirming the AJ ’s decision to grant
the Agency’s motion for summary judgment regarding allegations 1 and 2 because Complainant failed to identify a genuine issue of material fact related to those incidents . However, the
Commission reversed the AJ’s summary judgment decision with respect to incidents 3- 5, finding
that the record required furt her development because there were genuine issues of material fact
and issues of credibility that require d a hearing. Orval T. v. Dep’t of Homeland Security, EEOC
Appeal No. 2020001742 (Sept. 13, 2021).
Our prior decision noted that the parties did not dispute that, after Complainant disclosed his EEO Counselor contact , S4 told Complainant that he should have approached management first .
The AJ found that, because Complainant “never alleged the statement was made with any
hostility or to criticize” a nd because S4 “did not exert any pressure on Complainant” to drop his
complaint, S4’s comment could not have a chilling effect on the EEO process. The Commission
disagreed , stating that the anti -retaliation provisions of Title VII encompass statements that are
reasonably likely to deter a reasonable employee from engaging in protected activity. T here is
no requirement that a supervisor must pressure a complainant to drop an EEO complaint or that a supervisor’s statement must be hostile or critical to creat e a chilling effect.
According to S4, “Any time a subordinate has a problem, we have always discussed that we try
to resolve it at the lowest possible level prior to taking it to the next level. If there is a complaint about a supervisor, you go to a manager, and then to the [ Deputy Assistant Federal Security
Directors ], or EEO. We encourage officers to address complaints at the lowest possible level,
before escalating it to a higher officer or EEO.” ROI at 125. In our prior decision, however, we
noted that 29 C.F.R. Part 1614 does not require an employee to approach a supervisor or
manager before raising an EEO complaint. T he Commission noted that Complainant indicated
that he may not have pursued an EEO complaint if he had known how easy the resolution would be, immediately before S4’s alleged statement, and that the AJ must assess the credibility of both
Complainant and S4 at a hearing.
The AJ co ncluded that, even if S2 commented that Complainant had a target on his back, since
the comment did not, on its face, discourage engaging in protected EEO activity, Complainant failed to establish a nexus between the remark and his EEO activity. The Commis sion found,
however, that in determining that Complainant failed to tie S2’s comment to his EEO activity, the AJ improperly weighed the evidence. Complainant alleged that, before making the target
3 The appellate decision noted that Complainant’s appeal was premature, but that the Agency’s
final order cured his initial premature appeal.
statement, S2 said, “How dare you file a discrimination com plaint.” The Commission found that
the AJ seemed to discredit this statement by C omplainant, which was consistent in his
investigative affidavit and his deposition, because he did not specifically cite this comment in his
formal complaint or in EEO counsel ing. Further, t he AJ found that, “In the context of a heated
exchange about performance, it is logical to conclude that [S2] told Complainant how dare he take that tone with her, not ‘how dare he file a discrimination complaint’ .” But in reaching this
conc lusion, reasoned the Commission, the AJ appear ed to be finding S 2’s version of events more
credible than Complainant’s. The AJ also concluded that, because Complainant told S2 and S4 that he had filed an EEO complaint on January 11, 2018, any comment by S2 about Complainant’s EEO complaint would
have likely occurred on that date. However, the Commission noted several discrepancies in the record regarding the timeline of the meetings and the alleged comments. For example,
Complainant stated, “I believe the meeting with [S2] and [S4] took place on or about January 24,
2018.” ROI at 59, 70. In addition, the record contains a January 26, 2018 memorandum to file,
in which S2 stated that she had a follow up meeting with Complainant and S4 on January 25, 2018, while S2 later testified at her deposition that the meeting occurred on January 24, 2018.
ROI at 253, S2 Deposition at 55. The Commission observed that, i f Complainant referenced his
EEO activity at the January 24 or 25 meeting and S4 comment ed at the meeting that
Complainant should have come to management first , this would undermine the AJ’s | Orval T .,1
Complainant,
v.
Alejandro N. Mayorkas,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Request No. 2022000144
Appeal No. 2020001742
Agency No. HS -TSA -00796-2018
DECISION ON REQUEST FOR RECONSIDERATION
The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020001742 (September 13, 2021). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). The
Agency’s request for reconsideration is DENIED.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Transportation
Security Officer at the Agency’s Midway International Airport in Chicago, Illinois. Two
Transportation Security Managers, (S2) and (S4),2 served as Complainant’s managers . Report of
Investigation (ROI) at 58, 116.
On March 14, 2018, Complainant filed a formal complaint alleging that the Agency subjected
him to harass ment on the bases of national origin (Mexico) and age (53), and in reprisal for prior
protected EEO activity (opposing discrimination and the instant EEO complaint), when:
1. in or around January 2018, management ridiculed Complainant in front of his
peers;
2. in or around January 2018, management restricted Complainant from working the
exit lanes without an explanation;
3. in or around January 2018, management stated, “[Complainant] should be more
careful now that [he had] a target on [his] back”;
4. in or around January 2018, management stated, “[Complainant] should have come
to us first instead of filing an EEO complaint. We would have handled it here”; and,
5. in or around January 2018, management threatened Complainant with disciplinary
actions.
At the conclus ion of the investigation, Complainant was provided a copy of the investigative file
and requested a hearing before an EEOC Administrative Judge ( AJ). Over Complainant’s
objections, the AJ granted the Agency’s October 4, 2019, motion for summary judgment and issued a decision finding no discrimination. The AJ found that Complainant did not raise any genuine issues of material fact. Regarding incidents 1 and 2, the AJ concluded that there was no
evidence that the alleged harassment was based on Complainant’s membership in any protected
class or that the alleged harassment was sufficiently severe or pervasive to create a hostile work environment.
As for event 4, the AJ found that S4’s comment was consistent with the Agency’s policy of
encouraging employees to resolve complaints at the lowest possible level and that it did not have a chilling effect on the EEO process, noting that “Complainant never alleged the statement was made with any hostility or to criticize.” AJ Decision (AJD) at 9. Regarding Complainant’s allegation that S2 said, “How dare you file a discrimination complaint,” the AJ found that S2 likely did not make the alleged comment, noting, “In the context of a heated exchange about
performance, it is logical to conclude that [S 2] told Complainant how dare he take that tone with
her, not ‘how dare he file a discrimination complaint.’” Id. Finally, the AJ found that, assuming
arguendo that S2 made the comment about Complainant having a target on his back ( incident 3),
2 For purposes of consistency, this decision will refer to the responsible management offici als in
the same manner as in the prior appellate decision.
“Complainant failed to tie the comment to his EEO activity. The comment does not on its face
discourage an employee from participating in the EEO process, and therefore is not a per se
violation of the reprisal law.” AJD at 10.
Complainant appealed the AJ’s decisio n, and the Agency subsequently issued its January 24,
2020 final order, fully implementing the AJ’s decision.3
On September 13, 2021, the Commission issued a decision affirming the AJ ’s decision to grant
the Agency’s motion for summary judgment regarding allegations 1 and 2 because Complainant failed to identify a genuine issue of material fact related to those incidents . However, the
Commission reversed the AJ’s summary judgment decision with respect to incidents 3- 5, finding
that the record required furt her development because there were genuine issues of material fact
and issues of credibility that require d a hearing. Orval T. v. Dep’t of Homeland Security, EEOC
Appeal No. 2020001742 (Sept. 13, 2021).
Our prior decision noted that the parties did not dispute that, after Complainant disclosed his EEO Counselor contact , S4 told Complainant that he should have approached management first .
The AJ found that, because Complainant “never alleged the statement was made with any
hostility or to criticize” a nd because S4 “did not exert any pressure on Complainant” to drop his
complaint, S4’s comment could not have a chilling effect on the EEO process. The Commission
disagreed , stating that the anti -retaliation provisions of Title VII encompass statements that are
reasonably likely to deter a reasonable employee from engaging in protected activity. T here is
no requirement that a supervisor must pressure a complainant to drop an EEO complaint or that a supervisor’s statement must be hostile or critical to creat e a chilling effect.
According to S4, “Any time a subordinate has a problem, we have always discussed that we try
to resolve it at the lowest possible level prior to taking it to the next level. If there is a complaint about a supervisor, you go to a manager, and then to the [ Deputy Assistant Federal Security
Directors ], or EEO. We encourage officers to address complaints at the lowest possible level,
before escalating it to a higher officer or EEO.” ROI at 125. In our prior decision, however, we
noted that 29 C.F.R. Part 1614 does not require an employee to approach a supervisor or
manager before raising an EEO complaint. T he Commission noted that Complainant indicated
that he may not have pursued an EEO complaint if he had known how easy the resolution would be, immediately before S4’s alleged statement, and that the AJ must assess the credibility of both
Complainant and S4 at a hearing.
The AJ co ncluded that, even if S2 commented that Complainant had a target on his back, since
the comment did not, on its face, discourage engaging in protected EEO activity, Complainant failed to establish a nexus between the remark and his EEO activity. The Commis sion found,
however, that in determining that Complainant failed to tie S2’s comment to his EEO activity, the AJ improperly weighed the evidence. Complainant alleged that, before making the target
3 The appellate decision noted that Complainant’s appeal was premature, but that the Agency’s
final order cured his initial premature appeal.
statement, S2 said, “How dare you file a discrimination com plaint.” The Commission found that
the AJ seemed to discredit this statement by C omplainant, which was consistent in his
investigative affidavit and his deposition, because he did not specifically cite this comment in his
formal complaint or in EEO counsel ing. Further, t he AJ found that, “In the context of a heated
exchange about performance, it is logical to conclude that [S2] told Complainant how dare he take that tone with her, not ‘how dare he file a discrimination complaint’ .” But in reaching this
conc lusion, reasoned the Commission, the AJ appear ed to be finding S 2’s version of events more
credible than Complainant’s. The AJ also concluded that, because Complainant told S2 and S4 that he had filed an EEO complaint on January 11, 2018, any comment by S2 about Complainant’s EEO complaint would
have likely occurred on that date. However, the Commission noted several discrepancies in the record regarding the timeline of the meetings and the alleged comments. For example,
Complainant stated, “I believe the meeting with [S2] and [S4] took place on or about January 24,
2018.” ROI at 59, 70. In addition, the record contains a January 26, 2018 memorandum to file,
in which S2 stated that she had a follow up meeting with Complainant and S4 on January 25, 2018, while S2 later testified at her deposition that the meeting occurred on January 24, 2018.
ROI at 253, S2 Deposition at 55. The Commission observed that, i f Complainant referenced his
EEO activity at the January 24 or 25 meeting and S4 comment ed at the meeting that
Complainant should have come to management first , this would undermine the AJ’s conclusion
that it was unlikely that S2 referenced Complainant’s protected activity at the January 11, 2018 meeting when Complainant revealed his prior a ctivity and S4 made a comment about it.
The Commission noted that, w hile the AJ did not explicitly cite incident 5 in her decision , she
included a reference to the January 25, 2018 meeting wherein Complainant was notified, in the
AJ’s words, that “improper conduct could be grounds for discipline.” The Commission concluded that there were simply too many unresolved issues that require further development of
the record and assessment as to the credibility of S2, S4, and Complainant , and remanded claims
3-5 for a hearing .
On October 13, 2021, the Agency requested a reconsideration of the Commission’s decision remanding incidents 3-5, alleging a clearly erroneous interpretations of material fact and law. For
event 3, the Agency argued that, assuming that a reference to Complainant having a “target” on
his back was in fact made, the meeting between Complainant and his managers concerned his
complaint about his superiors and subsequent investigation, and there is no evidence that th e
statement was related to Complainant’s initiation of an EEO complaint. The Agency also asserts
that it is undisputed that S2’s “expression of surprise ” at the filing of Complainant’s complaint
was made on January 9, 2018,
4 fifteen days before S2 allegedly advised Complainant on January
24, 2018, to be careful because he had a target on his back.
4 The Agency characterizes Complainant’s allegation t hat S2 stated , “How dare you file a
discrimination complaint” as her “ expression of surprise.”
Regarding event 4, the Agency acknowledges that S4 stat ed that Complainant should have
addressed his complaint with management prior to filing an EEO complaint , and argues that this
simply reflected S4’ s surprise at learning that Complainant had initiated an EEO action
concerning the same matter he had raised with management. However, contends the Agency,
there is no evidence that management was attempting to curtail Complainant’s rights under Title
VII, rather that management itself was simply attempting to resolve Complainant’s concerns.
The Agency a rgues that S4’s statement w ould not have dissuaded a reasonable person from
pursuing the EEO process , and that any time a manager uses the word or acron ym EEO, or
simply addresses the EEO process, it does not constitute per se reprisal .
With respect to i ncident 5, the Agency notes that the Commission appears to have determined
there is a question of material fact regarding Complainant’s reprisal claim , but argues that it did
not articulate nor analyze such a question in its decision. The Agency asserts that S2 and S4 investigated a complaint that Complainant allegedly harassed contract employees, and that even if they told Complainant that he could be disciplined and this could be considered a threat, it was
conditional upon Complainant having engaged in harassing conduct and not at all conditioned upon his protected EEO activity. The Agency claims that there is no evidence that S2 ’s
conclusion of her investigation, with an admonition to Complainant concerning future activity at the checkpoint, was connected to his EEO activity. Complainant opposed the Agency’s request , but he did not offer specific argument s.
ANALYSIS AND FINDI NGS
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to deny the request. As noted in the previous appellate decision, there are issues
that need to be resolved at a hearing for incidents 3- 5. For example, the record contains
conflicting information about whether the parties met on January 24, or 25, 2018; and
clarification is needed to determine what was stated at this meeting as well as the January 11,
2018 meeting .
While the Agency argues that was undisputed that S2 ’s “expression of surprise ” at the filing of
Complainant’s complaint was made on January 9 , 2018, we find that the record does not support
this assertion. Complainant averred that he complained to S2 about incident 1 on January 9,
2018, and when S2 received his complaint , she responded, “How dare you file a discrimination
complaint .” ROI at 60- 1. In S2’s affidavit and her January 26, 2018 Note to File , S2 consistently
noted that she received Complainant’s emailed complaint on January 9, 2018, and she and S4 met with Complainant in person on January 11, 2018. ROI at 86, 89, 94-5, 251. It is undisputed
that Complainant sent his complaint to S2 on January 9, 2018, but there is no evidence that S2
responded to Complainant ’s complaint on that day .
In addition, the Agency argues that record contains “no evidence ” that S2’s statement , that
Complainant had a “target”, was connected to Complainant’s initiation of an EEO complaint.
However, Complainant specified t hat S2 made this statement because she “was angry that
[Complainant ] had filed a complaint with EEO alleging racial discrimination.” ROI at 64.
It is undisputed that S4 made the statement in incident 4, and t he Agency argues that it was not
an attempt to curtail Complainant’s rights under Title VII. However, as noted in the previous
appellate decision, Complainant indicated that he may not have pursued an EEO complaint if he had known how easy the resolution would be, and a hearing i s needed to assess the credibility of
both Complainant and S4. Complainant Deposition at 35.
In addition, the previous decision also stated that , given the importance of maintaining
“unfettered access to [the] statutory remedial mechanisms” in the anti -retaliation provisions of
Title VII, our cases have found that a broad range of actions can fall into this
category. Burlington N. and Santa Fe Ry. Co. v. White , 548 U.S. 53, 64
(2006) quoting Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997). For example, the
Commission has found that a supervisor attempting to counsel an employee against pursuing an EEO complaint “as a friend,” even if intended innocently, is an adverse action. Woolf v. Dep’ t of
Energy, EEOC Appeal No. 0120083727 (June 4, 2009) , request for recon. denied, EEOC
Request No . 0520090560 (Aug. 21, 2009). While the Agency argues that S4 had no intent to
discourage Complainant’s EEO activity, an innocent purpose can still result in an adverse action.
To the extent that the Agency appears to argue that S4’s statement did not constitute per se reprisal , we remind the Agency that the appellate decision did not find that Complainant pr oved
per se re prisal . Rather, it only determined that summary judgment was not appropriate .
For incident 5, S2 simply responded, “no” to the question, “ [d]id you threaten [Complainant]
with disciplinary action ?” ROI at 100. However, in her January 26, 2018 Note to File , S2 wrote
that, when she met with Complainant on January 25, 2018, she informed him that future
complaints made against him “will be grounds for discipline.” ROI at 254. While S2 denied
“threatening” Complainant, S2’s evidence confirmed that she made a statement regarding
possible future discipline , which undermines her blanket denial and it raises a credibility issue
that warrant s a hearing for further questioning.
We find that the Agency has not met its burden to show that the appellate decision involved a
clearly erroneous interpretation of material fact or law regarding incidents 3- 5. The decision in
EEOC Appeal No. 2020001742 remains the Commission’ s decision. There is no further right of
administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below.
ORDER
The Agency is directed to submit a co py of the complaint file to the Hearings Unit of the
EEOC’s Chicago District Office within fifteen (15) calendar days of the date this decision is issued. The Agency shall provide written notification to the Compliance Officer at the address
set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the
Administrative Judge shall hold a hearing on allegations (3), (4), and (5) and issue a decision in
accordance with 29 C.F.R. § 1614.109. The Agency shall issue a final act ion in accordance with
29 C.F.R. § 1614.110.
The Agency is further directed to submit a compliance report in accordance with the statement entitled “Implementation of the Commission’s Decision.”
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (F edSEP)
supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance repor t in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative.
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 compli ance 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 com plaint 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.
Failure by an agency to either file a compliance r eport or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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 he r
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 wor k.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to re present you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
____________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
February 28, 2022
Date | [
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216 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120162132.txt | 0120162132.txt | TXT | text/plain | 21,867 | Jazmine F.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense, Agency. | June 21, 2016 | Appeal Number: 0120162132
Background:
Complainant was employed as a Program Analyst, GS-0343-14 in the Agency's Program Budget Division, Financial Management Directorate (FMD) facility in Washington, DC. She began working for the Agency in February 2009. As indicated in the FAD, since January 24, 2011, and at the time of events giving rise to the underlying complaint, Complainant was working in a detail position as a Senior Staff Accountant, GS-0510-15, in the Agency's Office of the Under Secretary of Defense (OUSD). While not at issue in the instant appeal, Complainant was removed from federal service on January 17, 2013, due to lack of candor. The FAD clearly articulates facts relating to Complainant's employment, including her a clear description of her supervisory chain while on detail as a Senior Staff Accountant. This decision incorporates those facts by reference and will not reiterate them.
The record reflects that on or around April 27, 2012, during the EEO counseling of a previous complaint (Agency No. 2013-FMD-038), the Director of FMD (the Director) contacted Complainant's detail supervisor (S2), and informed her that Complainant was engaged in settlement discussions for an EEO complaint. Complainant contends that the Director told S2 about her prior EEO activity in order to interfere with her prospective employment opportunities, and that S2 did not have a need to know her EEO history.
The record reflects that the Director was the settlement authority for Complainant's EEO complaint and tried to develop an EEO settlement offer to resolve the complaint. The Director states that a potential settlement option was a permanent reassignment to OUSD, and that she needed to determine if that office would be receptive to the reassignment. The Director stated that she contacted S2 and inquired about Complainant's job performance on the detail and posed the question regarding the reassignment. While S2 seemed pleased with Complainant's performance, she did not have any vacant billets/positions. The Director explained the circumstances, and asked if OUSD would be willing to have Complainant continue to be detailed for a two-year period, or until a new position became available. S2 testified that at no time was she provided specific information about the details of Complainant's EEO complaint.
On July 27, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her as articulated in the statement of Issues Presented above. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. Complainant timely requested a hearing but subsequently withdrew her request. The complaint was remanded to the Agency for the issuance of a final decision. The Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Specifically, the Agency determined that Complainant was unable to establish a nexus between the prior protected activity and any adverse employment action.
CONTENTIONS ON APPEAL
On appeal, among other things, Complainant reasserts the arguments from her underlying complaint, and requests that the Commission reverse the Agency's FAD and find that she was subjected to unlawful discrimination as alleged.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Legal Analysis:
the Commission REVERSES the Agency's final decision.
ISSUES PRESENTED
Whether the FAD properly found that Complainant failed to establish she was discriminated against based on reprisal (prior EEO activity) when on April 27, 2012, the Office Director advised her temporary Detail Supervisor that Complainant had previously filed an EEO complaint.
BACKGROUND
Complainant was employed as a Program Analyst, GS-0343-14 in the Agency's Program Budget Division, Financial Management Directorate (FMD) facility in Washington, DC. She began working for the Agency in February 2009. As indicated in the FAD, since January 24, 2011, and at the time of events giving rise to the underlying complaint, Complainant was working in a detail position as a Senior Staff Accountant, GS-0510-15, in the Agency's Office of the Under Secretary of Defense (OUSD). While not at issue in the instant appeal, Complainant was removed from federal service on January 17, 2013, due to lack of candor. The FAD clearly articulates facts relating to Complainant's employment, including her a clear description of her supervisory chain while on detail as a Senior Staff Accountant. This decision incorporates those facts by reference and will not reiterate them.
The record reflects that on or around April 27, 2012, during the EEO counseling of a previous complaint (Agency No. 2013-FMD-038), the Director of FMD (the Director) contacted Complainant's detail supervisor (S2), and informed her that Complainant was engaged in settlement discussions for an EEO complaint. Complainant contends that the Director told S2 about her prior EEO activity in order to interfere with her prospective employment opportunities, and that S2 did not have a need to know her EEO history.
The record reflects that the Director was the settlement authority for Complainant's EEO complaint and tried to develop an EEO settlement offer to resolve the complaint. The Director states that a potential settlement option was a permanent reassignment to OUSD, and that she needed to determine if that office would be receptive to the reassignment. The Director stated that she contacted S2 and inquired about Complainant's job performance on the detail and posed the question regarding the reassignment. While S2 seemed pleased with Complainant's performance, she did not have any vacant billets/positions. The Director explained the circumstances, and asked if OUSD would be willing to have Complainant continue to be detailed for a two-year period, or until a new position became available. S2 testified that at no time was she provided specific information about the details of Complainant's EEO complaint.
On July 27, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her as articulated in the statement of Issues Presented above. At the | Jazmine F.,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense,
Agency.
Appeal No. 0120162132
Hearing No. 570-2015-01003X
Agency No. 2012FMD030
DECISION
On June 21, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a). On July 13, 2016, the Agency issued a final decision (FAD) concerning Complainant's equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.2 For the following reasons, the Commission REVERSES the Agency's final decision.
ISSUES PRESENTED
Whether the FAD properly found that Complainant failed to establish she was discriminated against based on reprisal (prior EEO activity) when on April 27, 2012, the Office Director advised her temporary Detail Supervisor that Complainant had previously filed an EEO complaint.
BACKGROUND
Complainant was employed as a Program Analyst, GS-0343-14 in the Agency's Program Budget Division, Financial Management Directorate (FMD) facility in Washington, DC. She began working for the Agency in February 2009. As indicated in the FAD, since January 24, 2011, and at the time of events giving rise to the underlying complaint, Complainant was working in a detail position as a Senior Staff Accountant, GS-0510-15, in the Agency's Office of the Under Secretary of Defense (OUSD). While not at issue in the instant appeal, Complainant was removed from federal service on January 17, 2013, due to lack of candor. The FAD clearly articulates facts relating to Complainant's employment, including her a clear description of her supervisory chain while on detail as a Senior Staff Accountant. This decision incorporates those facts by reference and will not reiterate them.
The record reflects that on or around April 27, 2012, during the EEO counseling of a previous complaint (Agency No. 2013-FMD-038), the Director of FMD (the Director) contacted Complainant's detail supervisor (S2), and informed her that Complainant was engaged in settlement discussions for an EEO complaint. Complainant contends that the Director told S2 about her prior EEO activity in order to interfere with her prospective employment opportunities, and that S2 did not have a need to know her EEO history.
The record reflects that the Director was the settlement authority for Complainant's EEO complaint and tried to develop an EEO settlement offer to resolve the complaint. The Director states that a potential settlement option was a permanent reassignment to OUSD, and that she needed to determine if that office would be receptive to the reassignment. The Director stated that she contacted S2 and inquired about Complainant's job performance on the detail and posed the question regarding the reassignment. While S2 seemed pleased with Complainant's performance, she did not have any vacant billets/positions. The Director explained the circumstances, and asked if OUSD would be willing to have Complainant continue to be detailed for a two-year period, or until a new position became available. S2 testified that at no time was she provided specific information about the details of Complainant's EEO complaint.
On July 27, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her as articulated in the statement of Issues Presented above. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. Complainant timely requested a hearing but subsequently withdrew her request. The complaint was remanded to the Agency for the issuance of a final decision. The Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Specifically, the Agency determined that Complainant was unable to establish a nexus between the prior protected activity and any adverse employment action.
CONTENTIONS ON APPEAL
On appeal, among other things, Complainant reasserts the arguments from her underlying complaint, and requests that the Commission reverse the Agency's FAD and find that she was subjected to unlawful discrimination as alleged.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII cases alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). First, Complainant must establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination; i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802. Next, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, then Complainant must prove, by a preponderance of the evidence, that the legitimate reason(s) proffered by the agency was a pretext for discrimination. Id. at 256.
Complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). Upon review, we find that Complainant has established a prima facie case of reprisal. The record indicates that Complainant had engaged in prior EEO activity regarding Agency No. 2013-FMD-038; and there is no dispute that the Director was aware of Complainant's prior EEO activity as she was the settlement authority for Complainant's EEO complaint and tried to develop an EEO settlement offer.
We also find that Complainant was subjected to adverse treatment and that there is a nexus between the protected activity and the adverse treatment at issue here. The conversation between the Director and S2 occurred only because Complainant had engaged in prior protected EEO activity.
In its enforcement guidance on retaliation, the Commission states:
The anti-retaliation provisions make it unlawful to discriminate because an individual has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII, the ADEA, the EPA, the ADA, the Rehabilitation Act, or GINA. This language, known as the "participation clause," provides protection from retaliation for many actions, including filing or serving as a witness for any side in an administrative proceeding or lawsuit alleging discrimination in violation of an EEO law. The participation clause applies even if the underlying allegation is not meritorious or was not timely filed. The Commission has long taken the position that the participation clause broadly protects EEO participation regardless of whether an individual has a reasonable, good faith belief that the underlying allegations are, or could become, unlawful conduct. Although the Supreme Court has not addressed this question, the participation clause by its terms contains no limiting language, and protects from retaliation employees' participation in a complaint, investigation, or adjudication process.
EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice 915.004 (Aug. 25, 2016) (Retaliation Guidance).
We also find that the Agency articulated a legitimate, non-discriminatory reason for the Director's actions. The parties concur that the Director spoke with S2 about Complainant's prior EEO activity. The parties disagree on the reasons for this communication. The Director contends that she discussed Complainant's prior EEO activity with S2 only to reach a settlement by finding Complainant a permanent assignment in OUSD. Although this is a legitimate, nondiscriminatory reason, we find that Complainant established that the Director's explanation was a pretext for discrimination. The record reflects that the Director inquired first about Complainant's performance, and subsequently inquired about whether there was a permanent assignment available for her. When S2 advised that there were not any available vacant positions, the Director then informed her that she was seeking the reassignment as a potential EEO settlement offer. Given that the Director was told that there was no vacant position available for Complainant, we find no justification for disclosing Complainant's prior EEO activity to S2. In other words, we find that no further conversation on this matter was necessary.
We have held that the actions of a supervisor are discriminatory based on reprisal where the supervisor acts to intimidate an employee and interfere with his or her EEO activity in any manner. See Binseel v. Dep't of the Army, EEOC Request No. 05970584 (Oct. 8, 1998); Yubuki v. Dep't of the Army, EEOC Request No. 05920778 (June 4, 1993); see also Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999). The statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter a complainant or others from engaging in protected activity. Id.; Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997). On these facts, we find that the Director's decision to mention Complainant's prior EEO complaint to S2 was retaliatory because it would have deterred a reasonable person from engaging in protected activity. Nothing in the record supports the Director's position that it was necessary to mention Complainant's prior EEO complaint to S2 when inquiring about a vacant position. As noted above, the conversation between the Director and S2 occurred only because Complainant engaged in protected EEO activity, and we find that this conversation by design would have the effect of intimidating and/or interfering with Complainant's EEO activity. We further find that the Director's decision to advise S2 that Complainant was actively involved in settling an EEO complaint would be reasonably likely to deter an employee from exercising their rights under the EEO statutes, and therefore was clearly in violation of the anti-retaliation provisions of our regulations.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed, the Agency's FAD, finding that Complainant was not discriminated against based on reprisal, is REVERSED. The complaint is REMANDED for proceedings consistent with this decision and the ORDER below.
ORDER
The Agency is ORDERED to take the following remedial action, within one hundred and twenty (120) calendar days of the date this decision is issued:
1. The Agency will conduct and complete a supplemental investigation on the issue of Complainant's entitlement to compensatory damages, and will afford her an opportunity to establish a causal relationship between the Agency's retaliation and his pecuniary or non-pecuniary losses, if any. Complainant will cooperate in the Agency's efforts to compute the amount of compensatory damages, and will provide all relevant information requested by the Agency. The Agency will issue a final decision on the issue of compensatory damages. 29 C.F.R. § 1614.110. The final decision shall contain appeal rights to the Commission. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth herein.
2. The Agency shall provide at least eight hours of in-person EEO training to the Director regarding her responsibilities under Title VII, with special emphasis on the duty of managers to avoid retaliating against employees.
3. The Agency shall consider taking appropriate disciplinary action against the Director. The Agency shall report its decision to the Compliance Officer referenced herein. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If the identified management officials have left the Agency's employment, the Agency shall furnish documentation of the departure date(s).
POSTING ORDER (G0617)
The Agency is ordered to post at its Financial Management Directorate (FMD) facility in Washington, D.C. copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g).
ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (R0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__6/22/18________________
Date
2 The Commission notes that Complainant filed her appeal prior to the Agency issuing a FAD in the instant matter. On March 25, 2016, the complaint was remanded to the Agency for issuance of a FAD, after Complainant withdrew her hearing request. The Agency did not issue the FAD until July 13, 2016, over three months after the complaint had been remanded for a FAD.
------------------------------------------------------------
------------------------------------------------------------
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217 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120162132-2.txt | 0120162132-2.txt | TXT | text/plain | 21,867 | Jazmine F.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense, Agency. | June 21, 2016 | Appeal Number: 0120162132
Background:
Complainant was employed as a Program Analyst, GS-0343-14 in the Agency's Program Budget Division, Financial Management Directorate (FMD) facility in Washington, DC. She began working for the Agency in February 2009. As indicated in the FAD, since January 24, 2011, and at the time of events giving rise to the underlying complaint, Complainant was working in a detail position as a Senior Staff Accountant, GS-0510-15, in the Agency's Office of the Under Secretary of Defense (OUSD). While not at issue in the instant appeal, Complainant was removed from federal service on January 17, 2013, due to lack of candor. The FAD clearly articulates facts relating to Complainant's employment, including her a clear description of her supervisory chain while on detail as a Senior Staff Accountant. This decision incorporates those facts by reference and will not reiterate them.
The record reflects that on or around April 27, 2012, during the EEO counseling of a previous complaint (Agency No. 2013-FMD-038), the Director of FMD (the Director) contacted Complainant's detail supervisor (S2), and informed her that Complainant was engaged in settlement discussions for an EEO complaint. Complainant contends that the Director told S2 about her prior EEO activity in order to interfere with her prospective employment opportunities, and that S2 did not have a need to know her EEO history.
The record reflects that the Director was the settlement authority for Complainant's EEO complaint and tried to develop an EEO settlement offer to resolve the complaint. The Director states that a potential settlement option was a permanent reassignment to OUSD, and that she needed to determine if that office would be receptive to the reassignment. The Director stated that she contacted S2 and inquired about Complainant's job performance on the detail and posed the question regarding the reassignment. While S2 seemed pleased with Complainant's performance, she did not have any vacant billets/positions. The Director explained the circumstances, and asked if OUSD would be willing to have Complainant continue to be detailed for a two-year period, or until a new position became available. S2 testified that at no time was she provided specific information about the details of Complainant's EEO complaint.
On July 27, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her as articulated in the statement of Issues Presented above. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. Complainant timely requested a hearing but subsequently withdrew her request. The complaint was remanded to the Agency for the issuance of a final decision. The Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Specifically, the Agency determined that Complainant was unable to establish a nexus between the prior protected activity and any adverse employment action.
CONTENTIONS ON APPEAL
On appeal, among other things, Complainant reasserts the arguments from her underlying complaint, and requests that the Commission reverse the Agency's FAD and find that she was subjected to unlawful discrimination as alleged.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Legal Analysis:
the Commission REVERSES the Agency's final decision.
ISSUES PRESENTED
Whether the FAD properly found that Complainant failed to establish she was discriminated against based on reprisal (prior EEO activity) when on April 27, 2012, the Office Director advised her temporary Detail Supervisor that Complainant had previously filed an EEO complaint.
BACKGROUND
Complainant was employed as a Program Analyst, GS-0343-14 in the Agency's Program Budget Division, Financial Management Directorate (FMD) facility in Washington, DC. She began working for the Agency in February 2009. As indicated in the FAD, since January 24, 2011, and at the time of events giving rise to the underlying complaint, Complainant was working in a detail position as a Senior Staff Accountant, GS-0510-15, in the Agency's Office of the Under Secretary of Defense (OUSD). While not at issue in the instant appeal, Complainant was removed from federal service on January 17, 2013, due to lack of candor. The FAD clearly articulates facts relating to Complainant's employment, including her a clear description of her supervisory chain while on detail as a Senior Staff Accountant. This decision incorporates those facts by reference and will not reiterate them.
The record reflects that on or around April 27, 2012, during the EEO counseling of a previous complaint (Agency No. 2013-FMD-038), the Director of FMD (the Director) contacted Complainant's detail supervisor (S2), and informed her that Complainant was engaged in settlement discussions for an EEO complaint. Complainant contends that the Director told S2 about her prior EEO activity in order to interfere with her prospective employment opportunities, and that S2 did not have a need to know her EEO history.
The record reflects that the Director was the settlement authority for Complainant's EEO complaint and tried to develop an EEO settlement offer to resolve the complaint. The Director states that a potential settlement option was a permanent reassignment to OUSD, and that she needed to determine if that office would be receptive to the reassignment. The Director stated that she contacted S2 and inquired about Complainant's job performance on the detail and posed the question regarding the reassignment. While S2 seemed pleased with Complainant's performance, she did not have any vacant billets/positions. The Director explained the circumstances, and asked if OUSD would be willing to have Complainant continue to be detailed for a two-year period, or until a new position became available. S2 testified that at no time was she provided specific information about the details of Complainant's EEO complaint.
On July 27, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her as articulated in the statement of Issues Presented above. At the | Jazmine F.,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense,
Agency.
Appeal No. 0120162132
Hearing No. 570-2015-01003X
Agency No. 2012FMD030
DECISION
On June 21, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a). On July 13, 2016, the Agency issued a final decision (FAD) concerning Complainant's equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.2 For the following reasons, the Commission REVERSES the Agency's final decision.
ISSUES PRESENTED
Whether the FAD properly found that Complainant failed to establish she was discriminated against based on reprisal (prior EEO activity) when on April 27, 2012, the Office Director advised her temporary Detail Supervisor that Complainant had previously filed an EEO complaint.
BACKGROUND
Complainant was employed as a Program Analyst, GS-0343-14 in the Agency's Program Budget Division, Financial Management Directorate (FMD) facility in Washington, DC. She began working for the Agency in February 2009. As indicated in the FAD, since January 24, 2011, and at the time of events giving rise to the underlying complaint, Complainant was working in a detail position as a Senior Staff Accountant, GS-0510-15, in the Agency's Office of the Under Secretary of Defense (OUSD). While not at issue in the instant appeal, Complainant was removed from federal service on January 17, 2013, due to lack of candor. The FAD clearly articulates facts relating to Complainant's employment, including her a clear description of her supervisory chain while on detail as a Senior Staff Accountant. This decision incorporates those facts by reference and will not reiterate them.
The record reflects that on or around April 27, 2012, during the EEO counseling of a previous complaint (Agency No. 2013-FMD-038), the Director of FMD (the Director) contacted Complainant's detail supervisor (S2), and informed her that Complainant was engaged in settlement discussions for an EEO complaint. Complainant contends that the Director told S2 about her prior EEO activity in order to interfere with her prospective employment opportunities, and that S2 did not have a need to know her EEO history.
The record reflects that the Director was the settlement authority for Complainant's EEO complaint and tried to develop an EEO settlement offer to resolve the complaint. The Director states that a potential settlement option was a permanent reassignment to OUSD, and that she needed to determine if that office would be receptive to the reassignment. The Director stated that she contacted S2 and inquired about Complainant's job performance on the detail and posed the question regarding the reassignment. While S2 seemed pleased with Complainant's performance, she did not have any vacant billets/positions. The Director explained the circumstances, and asked if OUSD would be willing to have Complainant continue to be detailed for a two-year period, or until a new position became available. S2 testified that at no time was she provided specific information about the details of Complainant's EEO complaint.
On July 27, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her as articulated in the statement of Issues Presented above. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. Complainant timely requested a hearing but subsequently withdrew her request. The complaint was remanded to the Agency for the issuance of a final decision. The Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Specifically, the Agency determined that Complainant was unable to establish a nexus between the prior protected activity and any adverse employment action.
CONTENTIONS ON APPEAL
On appeal, among other things, Complainant reasserts the arguments from her underlying complaint, and requests that the Commission reverse the Agency's FAD and find that she was subjected to unlawful discrimination as alleged.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII cases alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). First, Complainant must establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination; i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802. Next, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, then Complainant must prove, by a preponderance of the evidence, that the legitimate reason(s) proffered by the agency was a pretext for discrimination. Id. at 256.
Complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). Upon review, we find that Complainant has established a prima facie case of reprisal. The record indicates that Complainant had engaged in prior EEO activity regarding Agency No. 2013-FMD-038; and there is no dispute that the Director was aware of Complainant's prior EEO activity as she was the settlement authority for Complainant's EEO complaint and tried to develop an EEO settlement offer.
We also find that Complainant was subjected to adverse treatment and that there is a nexus between the protected activity and the adverse treatment at issue here. The conversation between the Director and S2 occurred only because Complainant had engaged in prior protected EEO activity.
In its enforcement guidance on retaliation, the Commission states:
The anti-retaliation provisions make it unlawful to discriminate because an individual has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII, the ADEA, the EPA, the ADA, the Rehabilitation Act, or GINA. This language, known as the "participation clause," provides protection from retaliation for many actions, including filing or serving as a witness for any side in an administrative proceeding or lawsuit alleging discrimination in violation of an EEO law. The participation clause applies even if the underlying allegation is not meritorious or was not timely filed. The Commission has long taken the position that the participation clause broadly protects EEO participation regardless of whether an individual has a reasonable, good faith belief that the underlying allegations are, or could become, unlawful conduct. Although the Supreme Court has not addressed this question, the participation clause by its terms contains no limiting language, and protects from retaliation employees' participation in a complaint, investigation, or adjudication process.
EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice 915.004 (Aug. 25, 2016) (Retaliation Guidance).
We also find that the Agency articulated a legitimate, non-discriminatory reason for the Director's actions. The parties concur that the Director spoke with S2 about Complainant's prior EEO activity. The parties disagree on the reasons for this communication. The Director contends that she discussed Complainant's prior EEO activity with S2 only to reach a settlement by finding Complainant a permanent assignment in OUSD. Although this is a legitimate, nondiscriminatory reason, we find that Complainant established that the Director's explanation was a pretext for discrimination. The record reflects that the Director inquired first about Complainant's performance, and subsequently inquired about whether there was a permanent assignment available for her. When S2 advised that there were not any available vacant positions, the Director then informed her that she was seeking the reassignment as a potential EEO settlement offer. Given that the Director was told that there was no vacant position available for Complainant, we find no justification for disclosing Complainant's prior EEO activity to S2. In other words, we find that no further conversation on this matter was necessary.
We have held that the actions of a supervisor are discriminatory based on reprisal where the supervisor acts to intimidate an employee and interfere with his or her EEO activity in any manner. See Binseel v. Dep't of the Army, EEOC Request No. 05970584 (Oct. 8, 1998); Yubuki v. Dep't of the Army, EEOC Request No. 05920778 (June 4, 1993); see also Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999). The statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter a complainant or others from engaging in protected activity. Id.; Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997). On these facts, we find that the Director's decision to mention Complainant's prior EEO complaint to S2 was retaliatory because it would have deterred a reasonable person from engaging in protected activity. Nothing in the record supports the Director's position that it was necessary to mention Complainant's prior EEO complaint to S2 when inquiring about a vacant position. As noted above, the conversation between the Director and S2 occurred only because Complainant engaged in protected EEO activity, and we find that this conversation by design would have the effect of intimidating and/or interfering with Complainant's EEO activity. We further find that the Director's decision to advise S2 that Complainant was actively involved in settling an EEO complaint would be reasonably likely to deter an employee from exercising their rights under the EEO statutes, and therefore was clearly in violation of the anti-retaliation provisions of our regulations.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed, the Agency's FAD, finding that Complainant was not discriminated against based on reprisal, is REVERSED. The complaint is REMANDED for proceedings consistent with this decision and the ORDER below.
ORDER
The Agency is ORDERED to take the following remedial action, within one hundred and twenty (120) calendar days of the date this decision is issued:
1. The Agency will conduct and complete a supplemental investigation on the issue of Complainant's entitlement to compensatory damages, and will afford her an opportunity to establish a causal relationship between the Agency's retaliation and his pecuniary or non-pecuniary losses, if any. Complainant will cooperate in the Agency's efforts to compute the amount of compensatory damages, and will provide all relevant information requested by the Agency. The Agency will issue a final decision on the issue of compensatory damages. 29 C.F.R. § 1614.110. The final decision shall contain appeal rights to the Commission. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth herein.
2. The Agency shall provide at least eight hours of in-person EEO training to the Director regarding her responsibilities under Title VII, with special emphasis on the duty of managers to avoid retaliating against employees.
3. The Agency shall consider taking appropriate disciplinary action against the Director. The Agency shall report its decision to the Compliance Officer referenced herein. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If the identified management officials have left the Agency's employment, the Agency shall furnish documentation of the departure date(s).
POSTING ORDER (G0617)
The Agency is ordered to post at its Financial Management Directorate (FMD) facility in Washington, D.C. copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g).
ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (R0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__6/22/18________________
Date
2 The Commission notes that Complainant filed her appeal prior to the Agency issuing a FAD in the instant matter. On March 25, 2016, the complaint was remanded to the Agency for issuance of a FAD, after Complainant withdrew her hearing request. The Agency did not issue the FAD until July 13, 2016, over three months after the complaint had been remanded for a FAD.
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218 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120142229.pdf | 0120142229.pdf | PDF | application/pdf | 20,796 | Regina M.,1 Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency. | May 1, 2014 | Appeal Number: 0120142229
Background:
At the time of events giving rise to t his complaint, Complainant worked as a Teleservice
Representative, GS -9, at the Agency’s work facility in Birmingham, Alabama.
On September 27, 2012, Complainant filed an EEO complaint wherein she claimed that the
Agency discriminated against her in reprisal for her prior protected EEO activity when:
1. On July 20, 2012, Complainant w as informed that she was not selected for the
position of Benefit/Authorizer/Legal Administrative Specialist position advertised
under Vacancy Announcement SB -672331- 12-RBS.
2. On August 8, 2012, Complainant did not receive a R ecognition of Contribution
(ROC) award and has not received a ROC award since 2006.
3. Complainant also claimed that she was subjected to retaliatory harassment when:
a. In April 2012, management denied Complainant’s request to r ealign her shift
schedule.
b. In May 2012, while on a detail assignme nt, management did not allow Complainant
to work overtime in her original component. However, while on the detail
assignment, management required that she work in her original component on the
component’s Level One days.
c. In May 2012, Complainant’s second line management requested to meet with her
regarding a discourtesy conduct issue. Subsequently, Complainant’s second line
manager met with her, apologized and said he had heard differently regarding the
discourtesy conduct issue.
The Agency accepted claims (1 -2) for investigation. The Agency dismissed claim (3) pursuant
to 29 C.F.R. § 1614.107(a)(2) on the grounds that Complainant failed to initiate contact with
an EEO Counselor in a timely manner. The Agency noted that the alleged discriminatory events occurred in April and May 2012, but Complainant did not initiate contact with an EE O
Counselor until August 7, 2012, after the expiration of the 45- day limitation period.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing
but subsequently withdrew her request. Consequently, the Agency issued a final decision
pursuant to 29 C.F.R. § 1614.110(b).
The Agency determ ined that Complainant failed to prove that it subjected her to discrimination
as alleged. The Agency noted that Complainant previously filed ten formal EEO complaints from 2004 through 2010. With respect to claim (1), Complainant applied for the position of
Benefit Authorizer/Legal Administrative Specialist and received a score of 100, which made
her eligible for the Best Qualified list ; however, she was not selected for the position. There
were nine selectees for the position, two of whom were employees of the Teleservice center.
There had been 167 candidates eligible for promotion and eight eligible for a reassignment that
were certified. The Agency noted that Complainant asserted that she was better qualified than
the two selectees from the Teleservi ce center based on her work experience, knowledge of
Social Security regulations , and contributions toward Agency achievements.
The selecting official stating that in determining the best qualified candidates for the position
she compared Complainant’s qualifications to those of other applicants and determined that
Complainant was not among the best qualified. According to the selecting official, she based
her decision on the Manager’s (Complainant’s first line supervisor) recommendation, awards
received , and work experience. The selecting official stated that the Manager’s
recommendation for Complainant identified six out of ten areas where she needed improvement. The Manager stated that Complainant was recommended with r eservation .
According to the selecting official, she removed Complainant from further consideration when
she did not receive a highly recommended rating. The selecting official explained that the nine selectees all received a highly recommended rating from their managers. The select ing official
maintained that she was unaware of whether any of the selectees had prior EEO activity. The
Agency stated that the s electing official asserted she was not aware of any prior EEO activity
on the part of Complainant. The Agency further stated that two of the nine selectees had prior
EEO activity and that among the 57 selections made by the selecting official in the prior two
years, fourteen percent of those selectees had engaged in EEO activity.
With respect to claim (2), the Agency observed that Complainant stated s he should have
received a ROC award based on her performance and outstanding work contribution to her unit
and the Agency. Complainant claimed she received positive feedback from customers, Field
Offices and OIG offices. Complai nant asserted that nonetheless her Manager did not consider
such positive feedback with regard to her performance evaluati on and the issuance of awards
and that instead she sought to find fault in her performance. According to Complainant, she
refused to sign her performance review because she believed that she was treated unfairly by
the Manager. The Agency noted that Complainant claimed she has not received a performance
award since 2006.
The Manager stated that in order to receive a ROC, an employee must have a 4.0 performance
rating and Complainant’s performance rating for Fiscal Year 2011 was 3.0. The Manager
maintained that Complainant did not provide examples of her outstanding contributions. The
Manager stated that an employee who receives a complimentary letter is not necessarily
outstanding. According to the Agency, Complainant was informed in her final rating
discussion of performance issues in need of improvement.
The Agency determined that Complainant failed to establish a prima facie case of reprisal with
regard to claims (1 -2). The Agency stated that Complainant failed to establish that officials
responsible for taking the alleged discriminatory actions had prior knowledge of Complainant’s EEO activity. The Agency further relied on the fact that Complainant’s most recent prior EEO activity occurred in 2010 and the actions at issue did not take place until July 2012 and August
2012, respectively. The Agency reasoned that the timeline between the prior EEO activity and
the alleged repri sal was too attenuated to establish causation.
The Agency stated that even if both the Manager and the selecting official were aware of Complainant’s prior EEO activity, Complainant nevertheless was placed on increased service
observation due to her performance and that this almost certainly precluded a highly
recommended recommendation. The Agency maintained that the fact that two of the nine
selectees had prior EEO activity tends to diminish Complainant’s claim that EEO activity
prevents employees from receiving fair consideration in selection actions. As for claim (2),
the Agency determined that it established that the reason Complainant did not receive a ROC
award is because she failed to meet the established criteria and not because of any retaliatory
motive on the part of Agency officials. Further, the Agency noted that there were two
recipients of the ROC award from Complainant’s unit and one of them had engaged in EEO
activity.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Manager had to be aware of Complainant’s prior
EEO activity. Complainant points out that she had a successful appeal before the Commission and a notice would have been inserted in a conspicuous place at the facility.
Complainant v.
Social Security A dministration , EEOC Appeal No. 0120110169 (November 30, 2012).
Complainant further states that the Manager was notified that she would need official time to
participate in EEO matters. In terms of the temporal proximity of Complainant’s EEO activity
to the matters at issue, Complainant argues that immediately prior to the Commission decision
in her favor, her evaluation was “Satisfactory”. Complainant notes that in her mid -term
evaluation six months after that Commission decision the Manager was critical of her job
performance and stated that her performance had declined in the six -month period.
Complainant maintains that it is irrelevant whether or not the selecting official was aware of
her prior EEO activity. According to Complainant, the key point i s that the selecting official
relied on the Manager’s recommendation and the M anager held retaliatory motivation toward
her. Complainant contends that the Agency has not offered examples as to how her performance was poor or what critical elements she was failing. With regard to not receiving
a ROC award, Complainant argues that others have received a ROC award with a rating of less than 4.0. Complainant claims that one employee who received a ROC award had a rating of 3.5 on her year end review.
In res ponse, the Agency asserts that the Manager was generally aware Complainant had
engaged in EEO activity, but was unaware of any of the specifics of her prior claims. The
Agency states that the Manager approved Complainant’s requests to work on her prior EE O
complaints and monitored the amount of time she spent on those matters. The Agency maintains that during Complainant’s mid- year performance discussion on April 24, 2012, the
Manager informed Complainant that although she demonstrated a courteous attitude with the
public, she was frequently argumentative and combative when responding to constructive
feedback from management and technical assistants. The Agency states that Complainant was
urged to handle herself in a calm and professional manner and absta in from using offensive
language. According to the Agency, the Manager also informed Complainant that she needed to improve in timely logging on to the telephone at her scheduled duty time. Complainant was told that she was not adhering to the availabili ty policy as she was consistently taking long
breaks and lunches. Additionally, Complainant was informed that she had been observed by
management away from her duty station outside of the breaks and lunch time periods. The
Manager further explained to Co mplainant that the accuracy of information she provided to the
public was deficient. The Manager stated that as a journeyman, Complainant was expected to
maintain a level of accuracy above 90 percent, but instead her accuracy was currently 62.5
percent. Complainant was informed that she would be placed on an increased service
observation to help determine her areas of deficiency and evaluate what assistance to provide.
Legal Analysis:
the Commission AFFIRMS the Agency’s final decision .
BACKGROUND
At the time of events giving rise to t his complaint, Complainant worked as a Teleservice
Representative, GS -9, at the Agency’s work facility in Birmingham, Alabama.
On September 27, 2012, Complainant filed an EEO complaint wherein she claimed that the
Agency discriminated against her in reprisal for her prior protected EEO activity when:
1. On July 20, 2012, Complainant w as informed that she was not selected for the
position of Benefit/Authorizer/Legal Administrative Specialist position advertised
under Vacancy Announcement SB -672331- 12-RBS.
2. On August 8, 2012, Complainant did not receive a R ecognition of Contribution
(ROC) award and has not received a ROC award since 2006.
3. Complainant also claimed that she was subjected to retaliatory harassment when:
a. In April 2012, management denied Complainant’s request to r ealign her shift
schedule.
b. In May 2012, while on a detail assignme nt, management did not allow Complainant
to work overtime in her original component. However, while on the detail
assignment, management required that she work in her original component on the
component’s Level One days.
c. In May 2012, Complainant’s second line management requested to meet with her
regarding a discourtesy conduct issue. Subsequently, Complainant’s second line
manager met with her, apologized and said he had heard differently regarding the
discourtesy conduct issue.
The Agency accepted claims (1 -2) for investigation. The Agency dismissed claim (3) pursuant
to 29 C.F.R. § 1614.107(a)(2) on the grounds that Complainant failed to initiate contact with
an EEO Counselor in a timely manner. The Agency noted that the alleged discriminatory events occurred in April and May 2012, but Complainant did not initiate contact with an EE O
Counselor until August 7, 2012, after the expiration of the 45- day limitation period.
At the
Final Decision:
Accordingly, the Agency’s dismissal of claim (3) on the grounds of un timely EEO Counselor contact is AFFIRMED. | Regina M.,1
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120142229
Hearing No. 420- 2013- 00212X
Agency No. ATL -12-0767- SSA
DECISION
Complainant filed an appeal from the Agency’s May 1, 2014, final decision concerning her
equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq
.,
and the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq.
Our review is de novo. For the following reasons, the Commission AFFIRMS the Agency’s final decision .
BACKGROUND
At the time of events giving rise to t his complaint, Complainant worked as a Teleservice
Representative, GS -9, at the Agency’s work facility in Birmingham, Alabama.
On September 27, 2012, Complainant filed an EEO complaint wherein she claimed that the
Agency discriminated against her in reprisal for her prior protected EEO activity when:
1. On July 20, 2012, Complainant w as informed that she was not selected for the
position of Benefit/Authorizer/Legal Administrative Specialist position advertised
under Vacancy Announcement SB -672331- 12-RBS.
2. On August 8, 2012, Complainant did not receive a R ecognition of Contribution
(ROC) award and has not received a ROC award since 2006.
3. Complainant also claimed that she was subjected to retaliatory harassment when:
a. In April 2012, management denied Complainant’s request to r ealign her shift
schedule.
b. In May 2012, while on a detail assignme nt, management did not allow Complainant
to work overtime in her original component. However, while on the detail
assignment, management required that she work in her original component on the
component’s Level One days.
c. In May 2012, Complainant’s second line management requested to meet with her
regarding a discourtesy conduct issue. Subsequently, Complainant’s second line
manager met with her, apologized and said he had heard differently regarding the
discourtesy conduct issue.
The Agency accepted claims (1 -2) for investigation. The Agency dismissed claim (3) pursuant
to 29 C.F.R. § 1614.107(a)(2) on the grounds that Complainant failed to initiate contact with
an EEO Counselor in a timely manner. The Agency noted that the alleged discriminatory events occurred in April and May 2012, but Complainant did not initiate contact with an EE O
Counselor until August 7, 2012, after the expiration of the 45- day limitation period.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing
but subsequently withdrew her request. Consequently, the Agency issued a final decision
pursuant to 29 C.F.R. § 1614.110(b).
The Agency determ ined that Complainant failed to prove that it subjected her to discrimination
as alleged. The Agency noted that Complainant previously filed ten formal EEO complaints from 2004 through 2010. With respect to claim (1), Complainant applied for the position of
Benefit Authorizer/Legal Administrative Specialist and received a score of 100, which made
her eligible for the Best Qualified list ; however, she was not selected for the position. There
were nine selectees for the position, two of whom were employees of the Teleservice center.
There had been 167 candidates eligible for promotion and eight eligible for a reassignment that
were certified. The Agency noted that Complainant asserted that she was better qualified than
the two selectees from the Teleservi ce center based on her work experience, knowledge of
Social Security regulations , and contributions toward Agency achievements.
The selecting official stating that in determining the best qualified candidates for the position
she compared Complainant’s qualifications to those of other applicants and determined that
Complainant was not among the best qualified. According to the selecting official, she based
her decision on the Manager’s (Complainant’s first line supervisor) recommendation, awards
received , and work experience. The selecting official stated that the Manager’s
recommendation for Complainant identified six out of ten areas where she needed improvement. The Manager stated that Complainant was recommended with r eservation .
According to the selecting official, she removed Complainant from further consideration when
she did not receive a highly recommended rating. The selecting official explained that the nine selectees all received a highly recommended rating from their managers. The select ing official
maintained that she was unaware of whether any of the selectees had prior EEO activity. The
Agency stated that the s electing official asserted she was not aware of any prior EEO activity
on the part of Complainant. The Agency further stated that two of the nine selectees had prior
EEO activity and that among the 57 selections made by the selecting official in the prior two
years, fourteen percent of those selectees had engaged in EEO activity.
With respect to claim (2), the Agency observed that Complainant stated s he should have
received a ROC award based on her performance and outstanding work contribution to her unit
and the Agency. Complainant claimed she received positive feedback from customers, Field
Offices and OIG offices. Complai nant asserted that nonetheless her Manager did not consider
such positive feedback with regard to her performance evaluati on and the issuance of awards
and that instead she sought to find fault in her performance. According to Complainant, she
refused to sign her performance review because she believed that she was treated unfairly by
the Manager. The Agency noted that Complainant claimed she has not received a performance
award since 2006.
The Manager stated that in order to receive a ROC, an employee must have a 4.0 performance
rating and Complainant’s performance rating for Fiscal Year 2011 was 3.0. The Manager
maintained that Complainant did not provide examples of her outstanding contributions. The
Manager stated that an employee who receives a complimentary letter is not necessarily
outstanding. According to the Agency, Complainant was informed in her final rating
discussion of performance issues in need of improvement.
The Agency determined that Complainant failed to establish a prima facie case of reprisal with
regard to claims (1 -2). The Agency stated that Complainant failed to establish that officials
responsible for taking the alleged discriminatory actions had prior knowledge of Complainant’s EEO activity. The Agency further relied on the fact that Complainant’s most recent prior EEO activity occurred in 2010 and the actions at issue did not take place until July 2012 and August
2012, respectively. The Agency reasoned that the timeline between the prior EEO activity and
the alleged repri sal was too attenuated to establish causation.
The Agency stated that even if both the Manager and the selecting official were aware of Complainant’s prior EEO activity, Complainant nevertheless was placed on increased service
observation due to her performance and that this almost certainly precluded a highly
recommended recommendation. The Agency maintained that the fact that two of the nine
selectees had prior EEO activity tends to diminish Complainant’s claim that EEO activity
prevents employees from receiving fair consideration in selection actions. As for claim (2),
the Agency determined that it established that the reason Complainant did not receive a ROC
award is because she failed to meet the established criteria and not because of any retaliatory
motive on the part of Agency officials. Further, the Agency noted that there were two
recipients of the ROC award from Complainant’s unit and one of them had engaged in EEO
activity.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Manager had to be aware of Complainant’s prior
EEO activity. Complainant points out that she had a successful appeal before the Commission and a notice would have been inserted in a conspicuous place at the facility.
Complainant v.
Social Security A dministration , EEOC Appeal No. 0120110169 (November 30, 2012).
Complainant further states that the Manager was notified that she would need official time to
participate in EEO matters. In terms of the temporal proximity of Complainant’s EEO activity
to the matters at issue, Complainant argues that immediately prior to the Commission decision
in her favor, her evaluation was “Satisfactory”. Complainant notes that in her mid -term
evaluation six months after that Commission decision the Manager was critical of her job
performance and stated that her performance had declined in the six -month period.
Complainant maintains that it is irrelevant whether or not the selecting official was aware of
her prior EEO activity. According to Complainant, the key point i s that the selecting official
relied on the Manager’s recommendation and the M anager held retaliatory motivation toward
her. Complainant contends that the Agency has not offered examples as to how her performance was poor or what critical elements she was failing. With regard to not receiving
a ROC award, Complainant argues that others have received a ROC award with a rating of less than 4.0. Complainant claims that one employee who received a ROC award had a rating of 3.5 on her year end review.
In res ponse, the Agency asserts that the Manager was generally aware Complainant had
engaged in EEO activity, but was unaware of any of the specifics of her prior claims. The
Agency states that the Manager approved Complainant’s requests to work on her prior EE O
complaints and monitored the amount of time she spent on those matters. The Agency maintains that during Complainant’s mid- year performance discussion on April 24, 2012, the
Manager informed Complainant that although she demonstrated a courteous attitude with the
public, she was frequently argumentative and combative when responding to constructive
feedback from management and technical assistants. The Agency states that Complainant was
urged to handle herself in a calm and professional manner and absta in from using offensive
language. According to the Agency, the Manager also informed Complainant that she needed to improve in timely logging on to the telephone at her scheduled duty time. Complainant was told that she was not adhering to the availabili ty policy as she was consistently taking long
breaks and lunches. Additionally, Complainant was informed that she had been observed by
management away from her duty station outside of the breaks and lunch time periods. The
Manager further explained to Co mplainant that the accuracy of information she provided to the
public was deficient. The Manager stated that as a journeyman, Complainant was expected to
maintain a level of accuracy above 90 percent, but instead her accuracy was currently 62.5
percent. Complainant was informed that she would be placed on an increased service
observation to help determine her areas of deficiency and evaluate what assistance to provide.
ANALYSIS AND FINDINGS
Initially, we shall address the Agency’s dismissal of claim (3). The record reflects that the incidents at issue in claim (3) occurred in April 2012 and May 2012. Complainant did not
initiate contact with an EEO Counselor until August 7, 2012, after the expiration of the 45- day
limitation period for contacting an EEO Counselor. Complainant has not provided adequate justification to warrant an extension of the 45- day limitation period. Accordingly, the
Agency’s dismissal of claim (3) on the grounds of un timely EEO Counselor contact is
AFFIRMED.
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three- part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green
,
411 U.S. 792 (1973). Complainant must initially establish a prima fa cie case by demonstrating
that s he was subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Corp. v. Waters , 438 U.S. 567, 576
(1978) . Proof of a prima facie case will vary depending on the facts of the particular case.
McDonnell Douglas , 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine ,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Prods. , Inc. , 530 U.S. 133, 143 (2000); St. Mary 's Honor Ctr. v. Hicks ,
509 U.S. 502, 519 (1993).
We shall assume arguendo that Complainant set forth a prima facie case of reprisal with regard
to both claims (1- 2). The Agency explained as to claim (1) that Complainant was not selected
for the Benefits Authorizer position due to the selecting official’s determination that the
recommendation for Complainant from the Manager was not as favorable as that of the
recommendations for the selectees from their Managers. The selecting official noted that in
contrast to Complainant’s recommendation, all of the selectees were highly recommended by
their Managers. We find that the Agency has presented a legitimate, nondiscriminatory reason
for its selection decision.
With regard to claim (2), the Agency explain ed that in order to be considered for a ROC
award, an employee needed to have a PACS rating of 4.0 in their final PACS appraisal for the
prior fiscal year. Complainant’s Fiscal Year 2011 PACS rating was a 3.0. Thus, Complainant did not receive a ROC award. We find that the Agency articulated a legitimate,
nondiscriminatory reason for its decision.
Complainant attempts to establish pretext with regard to claim (1) by arguing that the
Manager’s retaliatory motivation toward her manifested itself in her recommendation with
reservation and that this influenced the selecting official to reject her for the Benefits
Authorizer position. Complainant further argues that in contrast to the Agency’s position that
the Manager was unaware of her prior EEO activi ty, the Manager was almost certainly aware
of her prior EEO activity given her successful Commission appeal and her requests to use official time. We observe that the Agency acknowledges in its response that the Manager was
generally aware Complainant had engaged in EEO activity, but was unaware of any of the
specifics of her prior claims. We are not persuaded that Complainant’s prior EEO activity was
a factor in her nonselection. Complainant has not refuted the Agency’s explanation that her job performa nce warranted impr ovement in several areas. Therefore, it was appropriate that
the Manager only provide a tepid recommendation of Complainant for the Benefits Authorizer position. The record supports the selecting official’s position that her nonselectio n of
Complainant was based on the selectees’ each having a more favorable recommendatio n than
Complainant rather than the influence of retaliatory motivation.
With regard to claim (2), Complainant claims that there is one comparison who had a PACS
rating of 3.5 and nevertheless received a ROC award. However, the Agency points out that
Complainant relied on an error in the report of investigation. The Agency states that the basis
for this comparison’s ROC award presented in August 2012, was her PACS rating of 4.5 for
her Fiscal Year 2011 performance. The Agency states that the comparison had a PACS rating
of 3.5 for Fiscal Year 2012 which is the not the time period at issue. We take note of the
aforementioned performance deficiencies that contributed to Complainant not receiving a 4.0
rating. In light of these negative aspects of Complainant’s job performance, w e find that
Complainant has not established that the Agency’s explanation for her not receiving a ROC
award was pretext intended to hide retaliat ory motivation.
CONCLUSION
The Agency’s determination that no discrimination occurred is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 subst antial 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), at Chap. 9 § VII.B (Aug. 5, 2015). All req uests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 RIG HT TO FILE A CIVIL ACTION (S0610)
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 T O REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot affo rd an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you.
You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
July 6, 2016
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219 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120171525.pdf | 0120171525.pdf | PDF | application/pdf | 18,576 | Kathy D .,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. | March 4, 2016 | Appeal Number: 0120171525
Background:
At the time of events giving rise to this complaint, Complainant w orked as a Rigger Supervisor I
at the Agency’s Puget Sound Naval Shipyard and Intermediate Maintenance Facility in Bremerton,
Washington. Report of Investigation (ROI), at 39.2 The management officials who supervised
Complainant included the General Foreman , the Superintendent, and the Platform Manager .
On March 4, 2016, when Complainant was instructed to have a dumpster moved from the view of
a photoshoot , the swing function on the crane malfunctioned. Id
. at 129- 30. As a result ,
Complainant instructed her subordinates to move the dumpster with two fork lifts operating in a
tandem fashion. Id. However, Complainant reportedly did not follow safety protocols in having
the dumpster moved with the two forklifts. Id. According to management, an Accident Prevention
Team member wrote -up a monitor log , writing that Complainant had failed to follow the
appropriate procedure in having the dumpster moved. Id. When the Accident Prevention Team
member confronted Com plainant over the matter , Complainant reportedly became upset and
walked away. Id. at 130. The General Foreman stated that performing such a complex forklift
maneuver requires conducting a complex forklift brief and ensuring that operators had correct paperwork for the action .
Id. at 789. The General Foreman then conducted a pre -action
investigation with Complainant on March 11, 2016, concerning her alleged failure to adhere to policy regarding the forklift operation.
On March 14, 2016, the General Foreman and the Platform Manager held a second pre -action
investigation meeting with Complainant over a different matter. The General Foreman averred that
the meeting was held because Complainant had failed to conduct an investigation into the actions of a s ubordinate as previously instructed, and that Complainant had neglected to inform him that
the employee had rejected a compromise to the situation. Id
. at 52. According to the General
Foreman, when he attempted to ask Complainant about t he situation, she r efused to answer any
questions without representation. Id. at 1132. The General Foreman stated that when the meeting
took place with Complainant on March 14, 2016, she telephoned her representative and asked to leave the shipyar d for the rest of the day.
Id. at 53- 54. He averred that he granted Complainant’s
request and stopped the meeting . Id.
However, according to Complainant, her request to leave the meeting was initially denied , which
made her feel physically threatened. Id
. at 40. Complainant averred that it was only when she
phoned her r epresentative that she was then allowed to leave the meeting room. Complaina nt
maintained that the Platform Manager told her she had already used her “three days available for
EEO,” and he made her submit a leave slip to go to the EEO Office. But b oth the General Foreman
and the Platform Man ager denied physically threatening Complainant and denied not allowing her
to leave the meeting room. Id. at 57.
2 The page numbers refer to the “bates stamp” numbers on the bottom right of each page.
On March 18, 2016, Complainant learned that the General For eman was to be on leave for two
days, but that another General For eman from an outside platform had been assigned to take his
place. Complainant however believed that she should have been the one assigned to take the
General For eman’s place as it had been commo n practice for her position to substitut e as the
General Foreman in such circumstances . Id. at 530. The Platform Manager explained that
Complainant was not asked to substitute as the General Foreman because she had “compliance
issues in the recent past ,” and he felt that she was “ not holding the standard that [he] woul d expect
from a General Foreman.” Id. at 1159- 60.
On or about May 4 , 2016, Complainant filed four separate EEO complaints, which were
consolidated by the Agency, alleging that the Agency discriminated against her on the basis of
reprisal for prior protected EEO activity when:
1. On March 11, 2016, a pre -action investigation was initiated into her alleged misconduct
and she was denied representation, not allowed to leave the room, and was told to
submit a leave slip to go to EEO ;
2. On March 14, 2016, a pre -action investigation was initiated into her alleged
misconduct ;
3. On March 21, 2016, she was denied the opportunity to act as General Foreman for two days in the absence of her supervisor; and
4. In March 2016, the EEO Office, Human Resources (HR) Office, and the Captain
interfered with the EEO process by assigning a hostile counselor and banning Complainant’s representative from the EEO Office .
Following the investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
The Agency specifically found that Complai nant did not establish that its legitimate,
nondiscriminatory reasons were a pretext for discrimination. In so finding, the Agency noted that Complainant did not provide an affidavit or other information during the investigation, and found
no evidence that would support a conclusion that management’s actions were motivated by
retaliatory animus. In addressing claim 1, the Agency noted that its reasons to conduct the pre -
action i nvestigation were well supported by the evidence. The Agency noted that Complain ant was
given several instructions and more than adequate time to perform the task, yet she failed to do so.
With respect to claim 2, the Agency found that the pre -action investigation relative to the forklift
operation was initiated because of information conveyed by the Accident Prevention Team
member that proper procedure may have not been followed. The Agency indicated that the pre-
action investigation was merely to give Complainant an opportunity to explain her actions, and it
was not based on retaliatory animus. The Agency further observed, with regard to claim 3, that
management made the decision not to have Complainant substitute as the General Foreman because of her actions with respect to claims 1 and 2 above. As for claim 4, t he Agency noted that
neither the Captain nor the HR Director involved themselves in the day -to-day assignments of the
EEO Office. The Agency additionally observed that Complainant’s Representative was banned
from the EEO Office after she referenced using a gun in email sent to the EEO Specialist.
CONTENTIONS ON APPEAL
Neither p arty has filed a brief on appeal.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C .F.R. § 1614.110(b),
the Agency’ s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, a nd . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).
Legal Analysis:
the Commission AFFIRMS the Agency’s final decision.
ISSUES PRESENTED
The issues presented are: (1) whether Complainant established that the Agency ’s proffered
explanation for its actions was pretext to mask discrimination based on reprisal; and (2) whether
the Agency’s actions materially affected the processing of Complainant’s EEO complaint.
BACKGROUND
At the time of events giving rise to this complaint, Complainant w orked as a Rigger Supervisor I
at the Agency’s Puget Sound Naval Shipyard and Intermediate Maintenance Facility in Bremerton,
Washington. Report of Investigation (ROI), at 39.2 The management officials who supervised
Complainant included the General Foreman , the Superintendent, and the Platform Manager .
On March 4, 2016, when Complainant was instructed to have a dumpster moved from the view of
a photoshoot , the swing function on the crane malfunctioned. Id
. at 129- 30. As a result ,
Complainant instructed her subordinates to move the dumpster with two fork lifts operating in a
tandem fashion. Id. However, Complainant reportedly did not follow safety protocols in having
the dumpster moved with the two forklifts. Id. According to management, an Accident Prevention
Team member wrote -up a monitor log , writing that Complainant had failed to follow the
appropriate procedure in having the dumpster moved. Id. When the Accident Prevention Team
member confronted Com plainant over the matter , Complainant reportedly became upset and
walked away. Id. at 130. The General Foreman stated that performing such a complex forklift
maneuver requires conducting a complex forklift brief and ensuring that operators had correct paperwork for the action .
Id. at 789. The General Foreman then conducted a pre -action
investigation with Complainant on March 11, 2016, concerning her alleged failure to adhere to policy regarding the forklift operation.
On March 14, 2016, the General Foreman and the Platform Manager held a second pre -action
investigation meeting with Complainant over a different matter. The General Foreman averred that
the meeting was held because Complainant had failed to conduct an investigation into the actions of a s ubordinate as previously instructed, and that Complainant had neglected to inform him that
the employee had rejected a compromise to the situation. Id
. at 52. According to the General
Foreman, when he attempted to ask Complainant about t he situation, she r efused to answer any
questions without representation. Id. at 1132. The General Foreman stated that when the meeting
took place with Complainant on March 14, 2016, she telephoned her representative and asked to leave the shipyar d for the rest of the day.
Id. at 53- 54. He averred that he granted Complainant’s
request and stopped the meeting . Id.
However, according to Complainant, her request to leave the meeting was initially denied , which
made her feel physically threatened. Id
. at 40. Complainant averred that it was only when she
phoned her r epresentative that she was then allowed to leave the meeting room. Complaina nt
maintained that the Platform Manager told her she had already used her “three days available for
EEO,” and he made her submit a leave slip to go to the EEO Office. But b oth the General Foreman
and the Platform Man ager denied physically threatening Complainant and denied not allowing her
to leave the meeting room. Id. at 57.
2 The page numbers refer to the “bates stamp” numbers on the bottom right of each page.
On March 18, 2016, Complainant learned that the General For eman was to be on leave for two
days, but that another General For eman from an outside platform had been assigned to take his
place. Complainant however believed that she should have been the one assigned to take the
General For eman’s place as it had been commo n practice for her position to substitut e as the
General Foreman in such circumstances . Id. at 530. The Platform Manager explained that
Complainant was not asked to substitute as the General Foreman because she had “compliance
issues in the recent past ,” and he felt that she was “ not holding the standard that [he] woul d expect
from a General Foreman.” Id. at 1159- 60.
On or about May 4 , 2016, Complainant filed four separate EEO complaints, which were
consolidated by the Agency, alleging that the Agency discriminated against her on the basis of
reprisal for prior protected EEO activity when:
1. On March 11, 2016, a pre -action investigation was initiated into her alleged misconduct
and she was denied representation, not allowed to leave the room, and was told to
submit a leave slip to go to EEO ;
2. On March 14, 2016, a pre -action investigation was initiated into her alleged
misconduct ;
3. On March 21, 2016, she was denied the opportunity to act as General Foreman for two days in the absence of her supervisor; and
4. In March 2016, the EEO Office, Human Resources (HR) Office, and the Captain
interfered with the EEO process by assigning a hostile counselor and banning Complainant’s representative from the EEO Office .
Following the investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
The Agency specifically found that Complai nant did not establish that its legitimate,
nondiscriminatory reasons were a pretext for discrimination. In so finding, the Agency noted that Complainant did not provide an affidavit or other information during the investigation, and found
no evidence that would support a | Kathy D .,1
Complainant,
v.
Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120171525
Agency Nos. DON-16-4523A-01429
DON-16-4523A-01455
DON-16-4523A-01551
DON-16-4523A-10552
DECISION
Complainant timely filed an appeal with the Equal Employment Opportunity Commission (EEOC
or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s final decision concerning her equal employment opportunity (EEO) complaint s alleging employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision.
ISSUES PRESENTED
The issues presented are: (1) whether Complainant established that the Agency ’s proffered
explanation for its actions was pretext to mask discrimination based on reprisal; and (2) whether
the Agency’s actions materially affected the processing of Complainant’s EEO complaint.
BACKGROUND
At the time of events giving rise to this complaint, Complainant w orked as a Rigger Supervisor I
at the Agency’s Puget Sound Naval Shipyard and Intermediate Maintenance Facility in Bremerton,
Washington. Report of Investigation (ROI), at 39.2 The management officials who supervised
Complainant included the General Foreman , the Superintendent, and the Platform Manager .
On March 4, 2016, when Complainant was instructed to have a dumpster moved from the view of
a photoshoot , the swing function on the crane malfunctioned. Id
. at 129- 30. As a result ,
Complainant instructed her subordinates to move the dumpster with two fork lifts operating in a
tandem fashion. Id. However, Complainant reportedly did not follow safety protocols in having
the dumpster moved with the two forklifts. Id. According to management, an Accident Prevention
Team member wrote -up a monitor log , writing that Complainant had failed to follow the
appropriate procedure in having the dumpster moved. Id. When the Accident Prevention Team
member confronted Com plainant over the matter , Complainant reportedly became upset and
walked away. Id. at 130. The General Foreman stated that performing such a complex forklift
maneuver requires conducting a complex forklift brief and ensuring that operators had correct paperwork for the action .
Id. at 789. The General Foreman then conducted a pre -action
investigation with Complainant on March 11, 2016, concerning her alleged failure to adhere to policy regarding the forklift operation.
On March 14, 2016, the General Foreman and the Platform Manager held a second pre -action
investigation meeting with Complainant over a different matter. The General Foreman averred that
the meeting was held because Complainant had failed to conduct an investigation into the actions of a s ubordinate as previously instructed, and that Complainant had neglected to inform him that
the employee had rejected a compromise to the situation. Id
. at 52. According to the General
Foreman, when he attempted to ask Complainant about t he situation, she r efused to answer any
questions without representation. Id. at 1132. The General Foreman stated that when the meeting
took place with Complainant on March 14, 2016, she telephoned her representative and asked to leave the shipyar d for the rest of the day.
Id. at 53- 54. He averred that he granted Complainant’s
request and stopped the meeting . Id.
However, according to Complainant, her request to leave the meeting was initially denied , which
made her feel physically threatened. Id
. at 40. Complainant averred that it was only when she
phoned her r epresentative that she was then allowed to leave the meeting room. Complaina nt
maintained that the Platform Manager told her she had already used her “three days available for
EEO,” and he made her submit a leave slip to go to the EEO Office. But b oth the General Foreman
and the Platform Man ager denied physically threatening Complainant and denied not allowing her
to leave the meeting room. Id. at 57.
2 The page numbers refer to the “bates stamp” numbers on the bottom right of each page.
On March 18, 2016, Complainant learned that the General For eman was to be on leave for two
days, but that another General For eman from an outside platform had been assigned to take his
place. Complainant however believed that she should have been the one assigned to take the
General For eman’s place as it had been commo n practice for her position to substitut e as the
General Foreman in such circumstances . Id. at 530. The Platform Manager explained that
Complainant was not asked to substitute as the General Foreman because she had “compliance
issues in the recent past ,” and he felt that she was “ not holding the standard that [he] woul d expect
from a General Foreman.” Id. at 1159- 60.
On or about May 4 , 2016, Complainant filed four separate EEO complaints, which were
consolidated by the Agency, alleging that the Agency discriminated against her on the basis of
reprisal for prior protected EEO activity when:
1. On March 11, 2016, a pre -action investigation was initiated into her alleged misconduct
and she was denied representation, not allowed to leave the room, and was told to
submit a leave slip to go to EEO ;
2. On March 14, 2016, a pre -action investigation was initiated into her alleged
misconduct ;
3. On March 21, 2016, she was denied the opportunity to act as General Foreman for two days in the absence of her supervisor; and
4. In March 2016, the EEO Office, Human Resources (HR) Office, and the Captain
interfered with the EEO process by assigning a hostile counselor and banning Complainant’s representative from the EEO Office .
Following the investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
The Agency specifically found that Complai nant did not establish that its legitimate,
nondiscriminatory reasons were a pretext for discrimination. In so finding, the Agency noted that Complainant did not provide an affidavit or other information during the investigation, and found
no evidence that would support a conclusion that management’s actions were motivated by
retaliatory animus. In addressing claim 1, the Agency noted that its reasons to conduct the pre -
action i nvestigation were well supported by the evidence. The Agency noted that Complain ant was
given several instructions and more than adequate time to perform the task, yet she failed to do so.
With respect to claim 2, the Agency found that the pre -action investigation relative to the forklift
operation was initiated because of information conveyed by the Accident Prevention Team
member that proper procedure may have not been followed. The Agency indicated that the pre-
action investigation was merely to give Complainant an opportunity to explain her actions, and it
was not based on retaliatory animus. The Agency further observed, with regard to claim 3, that
management made the decision not to have Complainant substitute as the General Foreman because of her actions with respect to claims 1 and 2 above. As for claim 4, t he Agency noted that
neither the Captain nor the HR Director involved themselves in the day -to-day assignments of the
EEO Office. The Agency additionally observed that Complainant’s Representative was banned
from the EEO Office after she referenced using a gun in email sent to the EEO Specialist.
CONTENTIONS ON APPEAL
Neither p arty has filed a brief on appeal.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C .F.R. § 1614.110(b),
the Agency’ s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, a nd . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).
ANALYSIS AND FINDINGS
Disparate Treatment To prevail in a disparate treatment claim, Complainant must satisfy the three -part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green
, 411 U.S. 792
(1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination.
Furnco Constr. Co. v. Waters , 438 U.S. 567, 576 (1978). The prima facie inquiry
may be dispensed with in this case, however, since the Ag ency has articulated legitimate,
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens , 460
U.S. 711, 713- 17 (1983); Holley v. Dep't of Veterans Affairs , EEOC Request No. 05950842 (Nov.
13, 1997). To ultimately prevail, Complainant must prove, by a preponderance o f the evidence,
that the Agency’ s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing
Products. Inc. , 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 519 (1993);
Tex. Dep't of Cmty. Affairs v. Burdine , 450 U.S. 248, 256 (1981).
Assuming, arguendo, that Complainant established a prima facie case of discrimina tion based on
reprisal , we find that the Agency articulated a legitimate, nondiscriminatory reason for its a ctions.
Specifically, regarding claim 1, the General Foreman averred that Complainant had failed to
conduct an investigation into the actions of a subordinate as previously instructed, and that
Complainant had neglected to inform him that the employee had rejected a compromise to the situation. ROI, at 52. According to the General Foreman, when he attempted to ask Complainant
about t he situation, she refused to answer any questions without representation. Id. In addressing
claim 2, management stated an Accident Prevention Team member wrote- up a monitor log writing
that Complainant had failed to follow the appropriate procedure i n having the dumpster moved.
Id. at 129- 30. As for claim 3, the Platform Manager explained that Complainant was not asked to
substitute for the General Foreman because she had compl iance issues in the very recent past,
including the matters cited in claims 1 and 2 above. Id. at 1159.
The burden now shifts to Complainant to establish that the Agency ’s nondiscriminatory reason s
were pretext for discrimination. Burdine , at 254 . Upon review, we that Complainant has not
established that the Agency’s reasons were pretext for discrimination based on reprisal. In so finding , we note that Complainant did not respond to the EEO investiga tor and did not provide an
affidavit for the Report of Investigation. T he record is simply absent of witnesses and
documentation corroborating Complainant’s allegations herein. We note that both the General Foreman and the Platform Man ager denied threatening Complainant in any way with respect to
claim s 1 and 2, and we can find no evidence refuting their statements. As Complainant did not
request a hearing, we do not have the benefit of an Administrative Judge’ s credibility
determinations after a h earing; therefore, we can only evaluate the facts based on the weight of the
evidence presented to us. Based on the record before us, we are not persuaded that Compla inant
has shown that management’ s conduct was based on her prior protected EEO activity.
Processing of EEO Complaint (Claim 4)
Lastly, we note that Complainant has voiced dissatisfaction wit h the Agency’ s processing of her
instant EEO complaint. Complainant specifically asserted th at the EEO Office, the HR Director ,
and the Captain interfer ed with the EEO process by assigning her a hostile counselor. We note,
however, that both the Captain and the HR Director denied being involved in the Processing of
Complainant’s EEO complaint. ROI, at 590, 1177 -78. There further is no evidence that the EEO
Office interfered with Complainant’s EEO c ounseling in a way that materially affected the
processing of her complaint. See Lemaheiu v. Dep't of Transp.
, EEOC Appeal No. 0120103279
(Apr. 19, 2013) citing Chostner v. Dep't of the Navy , EEOC Appeal No. 01 20071440 (Apr. 25,
2007). In so finding , we note that the EEO Counselor’s report is extremely detailed with statements
from Complainant and responding statements from all alleged responsible management officials. We also note that Complainant’s Representat ive was only physically banned from the Agency’s
EEO office after the Representative sent an email to the EEO Specialist writing in closing, “I hope you like the taste of the gun because you will chew it over and over again.” ROI, at 1017- 1019.
The EEO Off ice understandably took this email as a threat of violence. Nevertheless, the record
does not show that the physical banning of Complainant’s EEO Representative from the EEO office affected the processing of Complainant’s EEO complaint.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision finding that Complainant
was not discriminated against as alleged .
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD -110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal S ector EEO Portal (FedSEP). See 29 C.F.R.
§ 1614.403(g). 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 ve ry limited
circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
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 rece ive 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 w ill terminate the administrative processing of
your complaint .
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil ac tion without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to F ile a Civil Action for
the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
November 29, 2018
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220 | https://www.eeoc.gov/sites/default/files/decisions/2024_11_15/2024003437.pdf | 2024003437.pdf | PDF | application/pdf | 17,489 | Kathleen P,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. | April 15, 2024 | Appeal Number: 2024003437
Background:
During the relevant time, Complainant worked as a Security Guard, GS -
0085- 06, at the Agency’s Pueblo Chemical D epot, Directorate of Base
Operations, in Pueblo, Colorado.
Complainant applied and was interviewed for an open position under Job
Announcement MCGT235710412225HP, Police Officer, GS -0083- 06, at
Pueblo Chemical Depot. Complainant stated she was one of six candidates
interviewed.
On November 26, 2023, Complainant learned she was not selected for the
position.
On Monday November 27, 2023, Complainant emailed the Director, CECOM
Equal Employment Opportunity Office (hereafter EEO Director) , and
informed her of the non- selection at issue. The subject line of the email was
“EEO Issues.” In the body of the email, Complainant stated she was unaware
of who exactly to contact in order to investigate the selection of a male
candidate with allegedly inferior qualifications.
The EEO Director replied to her email stating in part: “(h)iring process would
fall under the Office of Special Counsel as it relates to a prohibited personnel
practice and also the IG as it relates to regulations and policies about
hiring.”
Complainant stated that, at the direction of the EEO Director, she contacted
IG, Office of Special Counsel, as well as the Merit Systems Protection Board in order to initiate an investigation into why a male co -worker with inferior
qualifications was selected instead of her. Thereafter, Complainant hired an attorney who contacted the EEO Office again.
On April 3, 2024, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and age
(57) when :
on or about 26 November 2023, Complainant was informed she was
not selected for job by another employee instead of the selecting
official, Supervisory Physical Security Officer, Pueblo Chemical Depot
for Job Announcement MCGT235710412225HP, Police Officer, GS -
0083- 06, at Pueblo Chemical Depot.
In the instant final decision, that Agency dismissed Complainant’s complaint
for untimely EEO contact pursuant to 29 CFR § 1614.107(a)(2) and
§1614.105(a)(1). The Agency maintained Complainant failed to make
contact with the EEO Counselor within 45 days of learning of her non-
selection .
The Agency noted Complainant had emailed on November 26, 2023, and been directed to contact the Office of Special Counsel and IG about the
hiring process. The Agency noted the date of intent to initiate EEO
investigation was March 4, 2024, when Complainant’s attorney contacted the
EEO Office.
Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant argues the Agency erred in dismissing the complaint
as Complainant emailed and expressed her intention to pursue an EEO claim
to the EEO Director the day after learning of her non -selection. As relief,
Complainant argues Complainant’s complaint should be processed and
sanctions should be imposed by the Commission.
In opposition to the appeal, the Agency contends the dismissal should be
upheld as Complainant failed to show intent to pursue the EEO process
within 45 days of learning of her non- selection.
STANDARD OF REVIEW
The Agency’ s decision to dismiss a complaint is subject to de novo review by
the Commission, which requires the Commission to examine the record without regard to the factual and legal determinations of the previous
Legal Analysis:
the Commission.
In opposition to the appeal, the Agency contends the dismissal should be
upheld as Complainant failed to show intent to pursue the EEO process
within 45 days of learning of her non- selection.
STANDARD OF REVIEW
The Agency’ s decision to dismiss a complaint is subject to de novo review by
the Commission, which requires the Commission to examine the record without regard to the factual and legal determinations of the previous
decision maker and issue its decision based on the Commission’s own
assessment of the record and its interpretation of the law. 29 C.F.R. §
1614.405(a). The Commission should construe the complaint in the light most favorable to the complainant and take the complaint’s allegations as
true. See Cobb v. Department of the Treasury , EEOC Request No. 05970077
(March 13, 1997). Thus, all reasonable inferences that may be drawn from the complaint’s allegations must be made in favor of the complainant.
ANALYSIS
The regulatio n at 29.F.R. §1614.107(a)(2) allows an agency to dismiss a
complaint that fails to comply with the applicable time limits contained in 29
C.F.R. §1614.105(a)(1), which, in turn, specifies that an aggrieved person
must initiate contact with an EEO counselor within 45 days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within 45 days of the effective date of the action .
29 C.F.R. §1614.105(a)(2) states that the agency shall extend the 45 -day
time limit when the individual shows that he or she was not notified of the
time limits and was not otherwise aware of them, that he or she did not
know and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence he or she was
prevented by circumstances beyond his or her control from contacting the
counselor within the time limits, or for other reasons considered sufficient by
the agency or the Commission.
A complainant satisfies the requirement of EEO C ounselor contact by
contacting an agency official “logically connected” with the EEO process, even if that official is not an EEO Counselor, and by exhibiting an intent to
begin the EEO process. See Jayna A. v. U.S. Postal Serv., EEOC Appeal No.
2019000179 (Nov. 29, 2018), citing Cristantiello v. Dep't of the Army , EEOC
Appeal No. 01992817 (Dec. 19, 2000), Allen v. U.S. Postal Serv., EEOC
Request No. 05950933 (July 9, 1996); Floyd v. National Guard Bureau,
EEOC Request No. 05890086 (June 22, 1989). The Commission looks at
both elements to determine whether contact was sufficient.
Here, we find a review of Complainant’s emails, the EEO Counselor’s
documents, and arguments on appeal reflect that Complainant’s efforts to
report discrimination in the selection process w as sufficient contact sufficient
for purposes of tolling the 45 -day requirements of 29 C.F.R. 1614.107 &
1614.105. As discussed below , Complainant both (a) made contact with the
EEO Director herself and (b) exhibited , in the subject line and body of the
email, the intent to begin the EEO process.
There is no requirement that a complainant use explicit language for her contact to officially be considered EEO Counselor contact. Complainant v.
Dep’t of the Army , EEOC Request No. 0520140383 (Dec. 5, 2014). T he
subject of Complainant’s email was “EEO Issues” which directly states her
intention to initiate an investigation within the EEO process. Complainant
also discussed her concerns over the non- selection with her immediate
supervisor and Chief. Complainant stated her supervisor and Chief encouraged her to contact the EEO Director, which she did on November 27,
2023. As Complainant noted on appeal, the body of the email describing a
non-selection claim wherein a male candidate was selected rather than
Complainant (female) and requesting an investigation of the non- selection
claim, is sufficient to exhibit an intent to initiate the EEO process. In sum, we conclude under the facts of this case that Complainant’s contact wi th the
EEO Director was sufficient to put the Agency on timely notice about
Complainant’s alleged discriminatory non -selection concerns.
Finally, we decline to sanction the Agency as requested by Complainant. The
Commission has the inherent power to control and prevent abuse of its
orders, processes, and procedures. The Commission can and will impose
sanctions for Agency malfeasance. See Latoyia B. v. Dep’t of the Army ,
EEOC Appeal No. 2023000217 (Dec. 5, 2 022)(citing Turner v. Dep't of the
Interior , EEOC Petition No. 04980037 (Aug. 5, 1999). Although we are
reversing the Agency's dismissal of Complainant's complaint for untimely
EEO contact, we do not find the Agency’s decision to dismiss amounted to
malfeasance to warrant the imposition of sanctions.2 | Kathleen P,1
Complainant,
v.
Christine Wormuth,
Secretary,
Department of the Army,
Agency.
Appeal No. 2024003437
Agency No. ARCMA24APR000486
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from the Agency's final decision dated
April 15, 2024, dismissing a formal complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. § 2000e et seq. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
ISSUES PRESENTED
Whether the Agency properly dismissed Complainant’s formal complaint for
untimely EEO contact.
BACKGROUND
During the relevant time, Complainant worked as a Security Guard, GS -
0085- 06, at the Agency’s Pueblo Chemical D epot, Directorate of Base
Operations, in Pueblo, Colorado.
Complainant applied and was interviewed for an open position under Job
Announcement MCGT235710412225HP, Police Officer, GS -0083- 06, at
Pueblo Chemical Depot. Complainant stated she was one of six candidates
interviewed.
On November 26, 2023, Complainant learned she was not selected for the
position.
On Monday November 27, 2023, Complainant emailed the Director, CECOM
Equal Employment Opportunity Office (hereafter EEO Director) , and
informed her of the non- selection at issue. The subject line of the email was
“EEO Issues.” In the body of the email, Complainant stated she was unaware
of who exactly to contact in order to investigate the selection of a male
candidate with allegedly inferior qualifications.
The EEO Director replied to her email stating in part: “(h)iring process would
fall under the Office of Special Counsel as it relates to a prohibited personnel
practice and also the IG as it relates to regulations and policies about
hiring.”
Complainant stated that, at the direction of the EEO Director, she contacted
IG, Office of Special Counsel, as well as the Merit Systems Protection Board in order to initiate an investigation into why a male co -worker with inferior
qualifications was selected instead of her. Thereafter, Complainant hired an attorney who contacted the EEO Office again.
On April 3, 2024, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and age
(57) when :
on or about 26 November 2023, Complainant was informed she was
not selected for job by another employee instead of the selecting
official, Supervisory Physical Security Officer, Pueblo Chemical Depot
for Job Announcement MCGT235710412225HP, Police Officer, GS -
0083- 06, at Pueblo Chemical Depot.
In the instant final decision, that Agency dismissed Complainant’s complaint
for untimely EEO contact pursuant to 29 CFR § 1614.107(a)(2) and
§1614.105(a)(1). The Agency maintained Complainant failed to make
contact with the EEO Counselor within 45 days of learning of her non-
selection .
The Agency noted Complainant had emailed on November 26, 2023, and been directed to contact the Office of Special Counsel and IG about the
hiring process. The Agency noted the date of intent to initiate EEO
investigation was March 4, 2024, when Complainant’s attorney contacted the
EEO Office.
Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant argues the Agency erred in dismissing the complaint
as Complainant emailed and expressed her intention to pursue an EEO claim
to the EEO Director the day after learning of her non -selection. As relief,
Complainant argues Complainant’s complaint should be processed and
sanctions should be imposed by the Commission.
In opposition to the appeal, the Agency contends the dismissal should be
upheld as Complainant failed to show intent to pursue the EEO process
within 45 days of learning of her non- selection.
STANDARD OF REVIEW
The Agency’ s decision to dismiss a complaint is subject to de novo review by
the Commission, which requires the Commission to examine the record without regard to the factual and legal determinations of the previous
decision maker and issue its decision based on the Commission’s own
assessment of the record and its interpretation of the law. 29 C.F.R. §
1614.405(a). The Commission should construe the complaint in the light most favorable to the complainant and take the complaint’s allegations as
true. See Cobb v. Department of the Treasury , EEOC Request No. 05970077
(March 13, 1997). Thus, all reasonable inferences that may be drawn from the complaint’s allegations must be made in favor of the complainant.
ANALYSIS
The regulatio n at 29.F.R. §1614.107(a)(2) allows an agency to dismiss a
complaint that fails to comply with the applicable time limits contained in 29
C.F.R. §1614.105(a)(1), which, in turn, specifies that an aggrieved person
must initiate contact with an EEO counselor within 45 days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within 45 days of the effective date of the action .
29 C.F.R. §1614.105(a)(2) states that the agency shall extend the 45 -day
time limit when the individual shows that he or she was not notified of the
time limits and was not otherwise aware of them, that he or she did not
know and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence he or she was
prevented by circumstances beyond his or her control from contacting the
counselor within the time limits, or for other reasons considered sufficient by
the agency or the Commission.
A complainant satisfies the requirement of EEO C ounselor contact by
contacting an agency official “logically connected” with the EEO process, even if that official is not an EEO Counselor, and by exhibiting an intent to
begin the EEO process. See Jayna A. v. U.S. Postal Serv., EEOC Appeal No.
2019000179 (Nov. 29, 2018), citing Cristantiello v. Dep't of the Army , EEOC
Appeal No. 01992817 (Dec. 19, 2000), Allen v. U.S. Postal Serv., EEOC
Request No. 05950933 (July 9, 1996); Floyd v. National Guard Bureau,
EEOC Request No. 05890086 (June 22, 1989). The Commission looks at
both elements to determine whether contact was sufficient.
Here, we find a review of Complainant’s emails, the EEO Counselor’s
documents, and arguments on appeal reflect that Complainant’s efforts to
report discrimination in the selection process w as sufficient contact sufficient
for purposes of tolling the 45 -day requirements of 29 C.F.R. 1614.107 &
1614.105. As discussed below , Complainant both (a) made contact with the
EEO Director herself and (b) exhibited , in the subject line and body of the
email, the intent to begin the EEO process.
There is no requirement that a complainant use explicit language for her contact to officially be considered EEO Counselor contact. Complainant v.
Dep’t of the Army , EEOC Request No. 0520140383 (Dec. 5, 2014). T he
subject of Complainant’s email was “EEO Issues” which directly states her
intention to initiate an investigation within the EEO process. Complainant
also discussed her concerns over the non- selection with her immediate
supervisor and Chief. Complainant stated her supervisor and Chief encouraged her to contact the EEO Director, which she did on November 27,
2023. As Complainant noted on appeal, the body of the email describing a
non-selection claim wherein a male candidate was selected rather than
Complainant (female) and requesting an investigation of the non- selection
claim, is sufficient to exhibit an intent to initiate the EEO process. In sum, we conclude under the facts of this case that Complainant’s contact wi th the
EEO Director was sufficient to put the Agency on timely notice about
Complainant’s alleged discriminatory non -selection concerns.
Finally, we decline to sanction the Agency as requested by Complainant. The
Commission has the inherent power to control and prevent abuse of its
orders, processes, and procedures. The Commission can and will impose
sanctions for Agency malfeasance. See Latoyia B. v. Dep’t of the Army ,
EEOC Appeal No. 2023000217 (Dec. 5, 2 022)(citing Turner v. Dep't of the
Interior , EEOC Petition No. 04980037 (Aug. 5, 1999). Although we are
reversing the Agency's dismissal of Complainant's complaint for untimely
EEO contact, we do not find the Agency’s decision to dismiss amounted to
malfeasance to warrant the imposition of sanctions.2
CONCLUSION
We REVERSE the Agency’s dismissal and REMAND the formal complaint to
the Agency in accordance with the ORDER below.
ORDER (E0618)
The Agency is ordered to process the remanded claims in accordance with
29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the
Complainant that it has received the remanded claims within thirty (30)
calendar days of the date this decision was issued. 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 was issued, 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.
As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the
Agency’s letter of acknowledgment to Complainant, 2) a copy of the
Agency’s notice that transmits the investigative file and notice of rights, and
3) either a copy of the complainant’s request for a hearing, a copy of
complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period.
2 If Complainant prevails on the merits of her complaint, she will be entitled
to reasonable attorney’s fees and costs. See 29 C.F.R. § 1614.501(e).
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the
Commission’s corrective action is mandatory. Within seven (7) calendar
days of the completion of each ordered corrective action, the Agency shall
submit via the Federal Sector EEO Portal (FedSEP) supporting documents in
the digital format required by the Commission, referencing the compliance
docket number under which compliance was being monitored. Once all
compliance is complete, the Agency shall submit via FedSEP a final
compliance report in the digital format required by the Commission. See 29
C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative.
If the Agency does not comply with the Commission’s order, the C
omplainant 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.
Failure by an agency to either file a compliance report or implement any of
the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0124.1)
The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains
arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this
decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration . A party shall have
twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition.
See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD -110), at Chap. 9 § VII.B (Aug. 5,
2015).
Complainant should submit their request for reconsideration, and any statement or brief in support of their request, via the EEOC Public Portal,
which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx
Alternatively, Complainant can submit their request and arguments to the
Director, Office of Federal Operations, Equal Employment Opportunity
Commission, via regular mail addressed to P.O. Box 77960, Washington, DC
20013, or by certified mail addressed to 131 M Street, NE, Washington, DC
20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five
days of the expiration of the applicable filing period. See 29 C.F.R. §
1614.604.
An agency’s request for reconsideration must be submitted in digital format
v
ia the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g).
Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files their
request via the EEOC Public Portal, in which case no proof of service is required.
Failure to file within the 30 -day time period will result in dismissal of the
party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting
documentation must be submitted together with the 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(f).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0124)
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 their 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil
action without paying these fees or costs. Similarly, if you cannot afford an
attorney to represent you in the civil action, you may request the court to
appoint an attorney for you. You must submit the requests for waiver
of court costs or appointment of an attorney directly to the court, not the Commission.
The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read
the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
__ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
October 9, 2024
Date | [
"Cobb v. Department of the Treasury , EEOC Request No. 05970077 (March 13, 1997)",
"Jayna A. v. U.S. Postal Serv., EEOC Appeal No. 2019000179 (Nov. 29, 2018)",
"Cristantiello v. Dep't of the Army , EEOC Appeal No. 01992817 (Dec. 19, 2000)",
"Allen v. U.S. Postal Serv., EEOC Request No. 05950933 (July 9, 1996)... | [
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0.03223419189453125,
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221 | https://www.eeoc.gov/sites/default/files/decisions/2022_04_20/2022000338.pdf | 2022000338.pdf | PDF | application/pdf | 20,246 | Shanta S.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Office of Inspector General), Agency. | September 21, 2021 | Appeal Number: 2020003787
Background:
At the time of events giving rise to this complaint, Complainant worked as a Special Agent/Criminal Investigator at the Agency’s Region 4, Port of Duty in New Orleans, Louisiana.
On April 21, 2018, Complainant filed an EEO complaint, which she subsequently amended, alleging that the Agency discriminated against her on the bases of sex (female), age, and reprisal for prior protected EEO activity when , in relevant part :
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non- parties and the Commission’s website.
2 2022000338
1. On or about May 24, 2018, her Personal Identifiable information (PII), including
information about her EEO activity, was inappropriately disclosed to her colleagues
and managers, who did not have a need or right to know the information .
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation (ROI) and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
The AJ granted the Agency’s November 5, 2019, motion for a decision without a hearing on the
remaining claims and issued a decision without a hearing on April 1, 2020. The Agency
subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed an appeal on April 22,
2020. Neither Complainant nor the Agency submitted a brief or statement on appeal.
In Appeal No. 2020003787, the appellate decision affirmed the Agency’s final order in part finding
no discrimination regarding three of the claims alleged . Regarding C laim 3, the prior decision
noted that “ on May 4, 2018, Complainant submitted a Freedom of Information Act (FOIA) request
to the Agency. On May 24, 2018, in responding to the request, an Office of General Counsel
(OGC) Government Information Specialist based in Washington, D.C. (G1) emailed a number of
Complainant’s coworkers and supervisors. The email included a complete, unredacted copy of
Complainant’s FOIA request as an attachment, including Complainant’s request for her
“EEO/Hostile Work Environment file.” G1 also copied the Associate Counsel/FOIA Officer (G2)
on the emails. According t o G1, it is standard operating procedure to attach a copy of the FOIA
request to an email asking relevant individuals to search for responsive records. ” Complainant
alleged that several of her coworkers told her about the email received from G1.
The previous decision found that the Agency engaged in unlawful reprisal when a reference to
Complainant's EEO activity was included in an email sent by an agency official ( G1) to several of
her coworkers and virtually her entire management chain. The previous decision found that s uch
an action is reasonably likely to deter a reasonable employee from engaging in protected EEO
activity. The previous decision also noted that t he record reflects that disclosure of Complainant's
prior EEO activity was not necessary to the processing of her FOIA request.
The appellate decision asserted that t he "reasonable employee" standard requires the Agency and
the Commission to put themselves in the shoes of Complainant, to determine the impact of
disclosure on her. It also stated that w hether a supervisor or other employee engages i n improper
disclosure of EEO activity is irrelevant as the focus is on the impact on Complainant and not who
in the Agency made the disclosure.
The previous decision added that the Agency has not demonstrated that the decision will have a
"substantial impact on the policies, practices or operations" of the Agency. It also noted that
simply penalizing the Agency for making an i nappropriate disclos ure of Complainant's EEO
activity cannot have a "substantial" impact on the Agency’s mission and that there is no evidence
adduced by the Agency of such purported impact.
3 2022000338
Based on the finding, our decision in Appeal No. 2020003787 ordered the Agency to co nduct a
supplemental investigation to determine Complainant’s entitlement to compensatory damages and
to provide a minimum of eight (8) hours of in -person interactive EEO training to G1, with a special
emphasis on preventing reprisal for prior protected EE O activity. Additionally, the decision
ordered the Agency to consider taking appropriate disciplinary action against G1.
In its request for reconsideration, the Agency seeks reversal of the previous decision regarding
claim 3 and the remedies ordered. The Agency contests the previous decision ’s finding of unlawful
retaliation as alleged in claim 3. The Agency argues that the holding is mistaken in both law and
fact and would require the Agency to change its “neutrally -administered” FOIA procedures. The
Agency states that the finding also has troubling implications because it holds that even neutral,
routine administrative functions performed by non- supervisory employees with no discriminatory
motive or intent can nevertheless subject both agencies and their staff to liability for
discrimination.
According to the Agency, G1 lacked retaliatory motive wh en she processed Complainant’s FOIA
request. The Agency asserts that caselaw that the previous decision relied upon in finding that G1
subjected Complainant to retaliation does not apply to the facts in this case. The Agency argues
that all of th ose cases involve the conduct of supervisory officials or conduct so egregious and
offensive that it amounted to retaliatory harassment.
The Agency also asserts that nothing G1 did displayed contempt for the EEO process. The Agency
added that the FOIA process at issue here was not altered or manipulated in order to discriminate
against Complainant, i.e, disclose Complainant’s EEO activity. Instead, the Agency argues,
Complainant chose to step outside of the confidential EEO process and disclose her EEO activity
in the public FOIA request that she drafted a nd submitted to the Agency’s FOIA team. The Agency
argues that the previous decision’s finding that G1’s actions , and, by implication, the Agency’s
FOIA procedures , were “reasonably likely to deter a reasonable employee from engaging in
protected EEO acti vity” is not warranted in this instance.
In response, t hrough Counsel, Complainant states that the Agency's reconsideration request does
not meet the Commission’s standard for reconsideration . According to Complainant, t he
Commission’s recitation of the relevant facts was not "clearly erroneous ." Complainant also states
that the disclosure of her EEO activity to her supervisors and coworkers was not on a “need to
know bases.” Complainant maintains that the previous decision’s factual findings , and
interpretation of the “EEO standards” were accurate and not “clearly erroneous.”
Legal Analysis:
EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where
the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). The Agency’s
request is DENIED.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Special Agent/Criminal Investigator at the Agency’s Region 4, Port of Duty in New Orleans, Louisiana.
On April 21, 2018, Complainant filed an EEO complaint, which she subsequently amended, alleging that the Agency discriminated against her on the bases of sex (female), age, and reprisal for prior protected EEO activity when , in relevant part :
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non- parties and the Commission’s website.
2 2022000338
1. On or about May 24, 2018, her Personal Identifiable information (PII), including
information about her EEO activity, was inappropriately disclosed to her colleagues
and managers, who did not have a need or right to know the information .
At the | Shanta S.,1
Complainant,
v.
Pete Buttigieg,
Secretary,
Department of Transportation
(Office of Inspector General),
Agency.
Request No. 2022000338
Appeal No. 2020003787
Agency No. DOT2018-27854- OIG-03
DECISION ON REQUEST FOR RECONSIDERATION
The Agency timely requested that the Equal Employment Opportunity Commission (EE OC or
Commission) reconsider its decision in EEOC Appeal No. 2020003787 (September 21, 2021). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where
the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). The Agency’s
request is DENIED.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Special Agent/Criminal Investigator at the Agency’s Region 4, Port of Duty in New Orleans, Louisiana.
On April 21, 2018, Complainant filed an EEO complaint, which she subsequently amended, alleging that the Agency discriminated against her on the bases of sex (female), age, and reprisal for prior protected EEO activity when , in relevant part :
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non- parties and the Commission’s website.
2 2022000338
1. On or about May 24, 2018, her Personal Identifiable information (PII), including
information about her EEO activity, was inappropriately disclosed to her colleagues
and managers, who did not have a need or right to know the information .
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation (ROI) and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
The AJ granted the Agency’s November 5, 2019, motion for a decision without a hearing on the
remaining claims and issued a decision without a hearing on April 1, 2020. The Agency
subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed an appeal on April 22,
2020. Neither Complainant nor the Agency submitted a brief or statement on appeal.
In Appeal No. 2020003787, the appellate decision affirmed the Agency’s final order in part finding
no discrimination regarding three of the claims alleged . Regarding C laim 3, the prior decision
noted that “ on May 4, 2018, Complainant submitted a Freedom of Information Act (FOIA) request
to the Agency. On May 24, 2018, in responding to the request, an Office of General Counsel
(OGC) Government Information Specialist based in Washington, D.C. (G1) emailed a number of
Complainant’s coworkers and supervisors. The email included a complete, unredacted copy of
Complainant’s FOIA request as an attachment, including Complainant’s request for her
“EEO/Hostile Work Environment file.” G1 also copied the Associate Counsel/FOIA Officer (G2)
on the emails. According t o G1, it is standard operating procedure to attach a copy of the FOIA
request to an email asking relevant individuals to search for responsive records. ” Complainant
alleged that several of her coworkers told her about the email received from G1.
The previous decision found that the Agency engaged in unlawful reprisal when a reference to
Complainant's EEO activity was included in an email sent by an agency official ( G1) to several of
her coworkers and virtually her entire management chain. The previous decision found that s uch
an action is reasonably likely to deter a reasonable employee from engaging in protected EEO
activity. The previous decision also noted that t he record reflects that disclosure of Complainant's
prior EEO activity was not necessary to the processing of her FOIA request.
The appellate decision asserted that t he "reasonable employee" standard requires the Agency and
the Commission to put themselves in the shoes of Complainant, to determine the impact of
disclosure on her. It also stated that w hether a supervisor or other employee engages i n improper
disclosure of EEO activity is irrelevant as the focus is on the impact on Complainant and not who
in the Agency made the disclosure.
The previous decision added that the Agency has not demonstrated that the decision will have a
"substantial impact on the policies, practices or operations" of the Agency. It also noted that
simply penalizing the Agency for making an i nappropriate disclos ure of Complainant's EEO
activity cannot have a "substantial" impact on the Agency’s mission and that there is no evidence
adduced by the Agency of such purported impact.
3 2022000338
Based on the finding, our decision in Appeal No. 2020003787 ordered the Agency to co nduct a
supplemental investigation to determine Complainant’s entitlement to compensatory damages and
to provide a minimum of eight (8) hours of in -person interactive EEO training to G1, with a special
emphasis on preventing reprisal for prior protected EE O activity. Additionally, the decision
ordered the Agency to consider taking appropriate disciplinary action against G1.
In its request for reconsideration, the Agency seeks reversal of the previous decision regarding
claim 3 and the remedies ordered. The Agency contests the previous decision ’s finding of unlawful
retaliation as alleged in claim 3. The Agency argues that the holding is mistaken in both law and
fact and would require the Agency to change its “neutrally -administered” FOIA procedures. The
Agency states that the finding also has troubling implications because it holds that even neutral,
routine administrative functions performed by non- supervisory employees with no discriminatory
motive or intent can nevertheless subject both agencies and their staff to liability for
discrimination.
According to the Agency, G1 lacked retaliatory motive wh en she processed Complainant’s FOIA
request. The Agency asserts that caselaw that the previous decision relied upon in finding that G1
subjected Complainant to retaliation does not apply to the facts in this case. The Agency argues
that all of th ose cases involve the conduct of supervisory officials or conduct so egregious and
offensive that it amounted to retaliatory harassment.
The Agency also asserts that nothing G1 did displayed contempt for the EEO process. The Agency
added that the FOIA process at issue here was not altered or manipulated in order to discriminate
against Complainant, i.e, disclose Complainant’s EEO activity. Instead, the Agency argues,
Complainant chose to step outside of the confidential EEO process and disclose her EEO activity
in the public FOIA request that she drafted a nd submitted to the Agency’s FOIA team. The Agency
argues that the previous decision’s finding that G1’s actions , and, by implication, the Agency’s
FOIA procedures , were “reasonably likely to deter a reasonable employee from engaging in
protected EEO acti vity” is not warranted in this instance.
In response, t hrough Counsel, Complainant states that the Agency's reconsideration request does
not meet the Commission’s standard for reconsideration . According to Complainant, t he
Commission’s recitation of the relevant facts was not "clearly erroneous ." Complainant also states
that the disclosure of her EEO activity to her supervisors and coworkers was not on a “need to
know bases.” Complainant maintains that the previous decision’s factual findings , and
interpretation of the “EEO standards” were accurate and not “clearly erroneous.”
ANALYSIS AND FINDINGS
The Commission has held that disclosure of EEO activity by a supervisor or manager to coworkers
constitutes unlawful retaliation. Cand i R. v. Envtl. Prot. Agency, EEOC Appeal No. 0120171394
(Sept. 14, 2018) (finding unlawful retaliation where a Regional Counsel for the Agency sent to all regional office attorneys two emails which contained personally identifiable and confidential informa tion about Complainant’s prior EEO complaint); Complainant v. Dep’t of Justice , EEOC
4 2022000338
Appeal No. 0120132430 (July 9, 2015) ( finding unlawful retaliation when supervisor broadcast
complainant’s EEO activity in the presence of coworkers and management); Complainant v. Dep’t
of Justice, EEOC Appeal No. 0720120032 (May 1, 2014) ( determining that complainant was
subjected to retaliation when HR employee and coworke r inadvertently left message on
complainant’s work voicemail berating her and using strong language while discussing settlement
of complainant’s prior EEO complaint).
Here, the Agency argues that G1 was neither a supervisor nor a manager. However, like a ny
supervisor or manager, G1 was representing the Agency when she disclosed Complainant’s PII,
including Complainant’s EEO activity, to Complainant’s colleagues and managers who had no
need or right to know. As reflected in the caselaw on which the previo us decision relied, motive
is not required. What is required is the impact G1’s action on behalf of the Agency had on Complainant. Therefore, the Agency has not shown that the previous decision’s finding that G1’s
actions were “ reasonably likely to deter a reasonable employee from engaging in protected EEO
activity” was clearly erroneous .
Regarding the ordered remedy of training for G1, we are not persuaded by the Agency’s argument that requir ing training for one individual w ill require the Agency to change its “neutrally -
administered” FOIA procedures or even have a substantial impact on any agency policies,
practices or procedures. We note that the previous decision ordere d the Agency to provide 8 hours
of in -person interactive EEO training to G1, with a special emphasis on preventing reprisal for
prior protected EEO activity. The ordered training, which is not designed as a punitive measure
or as form of discipline but is a corrective action, is not overly broad and was tailored to prevent
the recurrence of discriminatory conduct.
Furthermore, pursuant to 29 C.F.R. § 1614.501(a)(2), to remedy a finding of discrimination, the
Commission may order the Agency to provide full relief, to include corrective, curative or preventive actions to ensure that violations of the law similar to those found will not recur. Based
on this re gulatory authority, it is well -established that the Commission may properly order an
Agency to provide relevant EEO training to employees as a measure to prevent future occurrences of discrimination. See Wild v. Dep't of Def., EEOC Request No. 05A10058 (M ar. 16, 2002).
A reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the A gency. We find that the Agency has not done so here.
The Commission finds that the Agency has not presented any argument or evidence tending to establish the existence of either reconsideration criteria.
Therefore, a fter reviewing the previous decision and the entire record, the Commission finds that
the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 2020003787 remains the
Commission's decision . There is no further right of administrative appeal on the decision of the
Commission on this request. The Agency shall comply with the Order as set forth below.
5 2022000338
ORDER
The Agency is ordered to take the following remedial action:
1. Within 90 calendar days of the date this decision is issued, the Agency shall conduct a supplemental investigation with respect to Complainant's claim of compensatory damages. The Agency shall allow Complainant to present evidence in support of her
compensatory dam ages claim. See Carle v. Dep't of the Navy , EEOC No. 01922369
(Jan. 5, 1993). Complainant shall cooperate with the Agency in this regard. The Agency shall issue a final decision addressing the issues of compensatory damages no later than 30 calendar days after the completion of the investigation.
2. Within 90 calendar days of the date this decision is issued, the Agency shall provide a minimum of eight hours of in -person or interactive training to G1, with a special
emphasis on preventing reprisal for prio r protected EEO activity.
3. Within 60 calendar days of the date this decision is issued, the Agency shall consider taking appropriate disciplinary action against G1. The Commission does not consider
training to constitute disciplinary action. If the Agenc y decides to take disciplinary
action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of
the responsible management officials h ave left the Agency's employment, then the
Agency shall furnish documentation of their departure date(s).
4. Within 30 calendar days of the date this decision is issued, the Agency shall post a notice in accordance with the statement entitled “Posting Order. ”
The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F .R. § 1614.403(g). Further,
the report must include evidence that the corrective action has been implemented.
POSTING ORDER (G0617)
The Agency is ordered to post at its OIG Region 4 facilities and at its Office of General Counsel ,
Washington, D.C. facility copies of the attached notice. Copies of the notice, after being signed
by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material. The original sign ed notice is to
be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period.
6 2022000338
The report must be in digital format, and must be submitted via the Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g).
ATTORNEY'S FEES (H1019)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she/he is entitled to an award of reasonable a ttorney's fees incurred in the processing of the
complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency.
The attorney shall submit a verified statement of fees to the Agency -- not to the Equal
Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar
days of receipt of this decision. The Agency shall then process the claim for attorney's fees in
accordance with 29 C.F.R. § 1614.501.13 2020003787
IMPLEMENTATION OF THE COMMISSION’ S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a fi nal compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
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 ha s
the right to file a civil actio n 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 o n 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency.
7 2022000338
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. Failu re 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 wor k.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (Q0610)
This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to
continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 organizat ion, and
not the local office, facility or department in which you work. Filing a civil action will terminate
the administrative processing of your complaint. FOR THE COMMISSION:
______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
March 7, 2022
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22, 1998 | Appeal Number: 01992262
Background:
Appellant, an Electronics Technician, GS-12, initiated contact with an EEO
Counselor on September 18, 1998. On November 5, 1998, appellant filed a
formal EEO complaint wherein he alleged that he had been discriminated
against on the bases of his race (African-American) and color (black)
when:
1. On September 3, 1998, appellant received a 10-day suspension for
disreputable conduct.
2. On July 8, 1998, the agency denied appellant's request for a temporary
change in duty station and a transfer to another group.
3. On August 27, 1998, management suggested that he write a letter
acknowledging guilt for the issues leading to his 10-day suspension.
4. In February 1996, appellant made a derogatory comment to a female
employee and was suspended for one day.
In its final decision, the agency dismissed the first allegation of
appellant's complaint on the grounds that appellant elected to proceed
pursuant to the agency's negotiated grievance procedure. The agency
determined that appellant raised his 10-day suspension when he filed
a grievance on October 2, 1998, pursuant to the negotiated grievance
procedure. Allegations 2 and 4 were dismissed on the grounds that
appellant failed to contact an EEO Counselor in a timely manner. The
agency determined that appellant's contact of an EEO Counselor was more
than 45 days after the incidents that occurred in February 1996 and on
July 8, 1998, respectively. Allegation 3 was accepted for investigation.
In a letter to the agency dated January 5, 1999, with regard to
allegation 1, appellant stated that he was instructed by his union and
the EEO Counselor to file a grievance about union violations other than
discrimination, and that discrimination complaints would be addressed in
the EEO process. Appellant states on appeal that he would not have filed
his grievances had he known that his EEO complaint would be dismissed for
the aforementioned grounds. With respect to the dismissal of allegations
2 and 4, appellant claims that he was unaware of any time frames for
contacting an EEO Counselor until after his initial contact with an EEO
Counselor in September 1998. Appellant further claims that at the time
that he was denied a transfer, he did not know what the EEO process was
and he only learned about the EEO process because a coworker mentioned
it to him. Finally, appellant states with regard to allegation 4 that
on or about November 1, 1998, he learned through a conversation with a
coworker that a white employee was not disciplined after being involved
in an incident very similar to that for which appellant received a one
day suspension.
By letter dated January 15, 1999, the agency informed appellant that it
did not accept allegation 1 because appellant filed several grievances
pertaining to the 10-day suspension. As for allegations 2 and 4, the
agency stated that it had been informed by appellant's work facility
that there is a posting of the current EEO process on the employees'
bulletin board.
Legal Analysis:
EEOC Regulation 29 C.F.R. §1614.301(a) provides in relevant part that
when a person is employed by an agency subject to 5 U.S.C. §7121(d) and
is covered by a collective bargaining agreement that permits allegations
of discrimination to be raised in a negotiated grievance procedure, a
person wishing to file a complaint or a grievance on a matter of alleged
employment discrimination must elect to raise the matter under either
part 1614 or the negotiated grievance procedure, but not both.
The record reveals that appellant filed a grievance concerning his
10-day suspension on October 2, 1998. The record, however, does not
contain a copy of the collective bargaining agreement. Without a copy of
the collective bargaining agreement, we are unable to determine whether
allegations of discrimination are permitted under the negotiated grievance
procedure. In light of the fact that we are unable to determine whether
the negotiated grievance procedure permits allegations of discrimination,
we find that the agency failed to substantiate the bases for its
final decision. See Marshall v. Department of the Navy, EEOC Request
No. 05910685 (September 6, 1991).
Final Decision:
Accordingly, the appeal is timely (see 29 C.F.R. §1614.402(a)), and is accepted in accordance with EEOC Order No. 960, as amended.<1> ISSUES PRESENTED The issues presented are: whether the agency properly dismissed the first allegation of appellant's complaint on the grounds that appellant elected to pursue the matter raised therein under the agency's negotiated grievance procedure; and whether the agency properly dismissed allegations 2 and 4 of appellant's complaint on the grounds that appellant failed to initiate contact with an EEO Counselor in a timely manner. BACKGROUND Appellant, an Electronics Technician, GS-12, initiated contact with an EEO Counselor on September 18, 1998. On November 5, 1998, appellant filed a formal EEO complaint wherein he alleged that he had been discriminated against on the bases of his race (African-American) and color (black) when: 1. On September 3, 1998, appellant received a 10-day suspension for disreputable conduct. 2. On July 8, 1998, the agency denied appellant's request for a temporary change in duty station and a transfer to another group. 3. On August 27, 1998, management suggested that he write a letter acknowledging guilt for the issues leading to his 10-day suspension. 4. In February 1996, appellant made a derogatory comment to a female employee and was suspended for one day. In its final decision, the agency dismissed the first allegation of appellant's complaint on the grounds that appellant elected to proceed pursuant to the agency's negotiated grievance procedure. The agency determined that appellant raised his 10-day suspension when he filed a grievance on October 2, 1998, pursuant to the negotiated grievance procedure. Allegations 2 and 4 were dismissed on the grounds that appellant failed to contact an EEO Counselor in a timely manner. The agency determined that appellant's contact of an EEO Counselor was more than 45 days after the incidents that occurred in February 1996 and on July 8, 1998, respectively. Allegation 3 was accepted for investigation. In a letter to the agency dated January 5, 1999, with regard to allegation 1, appellant stated that he was instructed by his union and the EEO Counselor to file a grievance about union violations other than discrimination, and that discrimination complaints would be addressed in the EEO process. Appellant states on appeal that he would not have filed his grievances had he known that his EEO complaint would be dismissed for the aforementioned grounds. With respect to the dismissal of allegations 2 and 4, appellant claims that he was unaware of any time frames for contacting an EEO Counselor until after his initial contact with an EEO Counselor in September 1998. Appellant further claims that at the time that he was denied a transfer, he did not know what the EEO process was and he only learned about the EEO process because a coworker mentioned it to him. Finally, appellant states with regard to allegation 4 that on or about November 1, 1998, he learned through a conversation with a coworker that a white employee was not disciplined after being involved in an incident very similar to that for which appellant received a one day suspension. By letter dated January 15, 1999, the agency informed appellant that it did not accept allegation 1 because appellant filed several grievances pertaining to the 10-day suspension. As for allegations 2 and 4, the agency stated that it had been informed by appellant's work facility that there is a posting of the current EEO process on the employees' bulletin board. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. §1614.301(a) provides in relevant part that when a person is employed by an agency subject to 5 U.S.C. §7121(d) and is covered by a collective bargaining agreement that permits allegations of discrimination to be raised in a negotiated grievance procedure, a person wishing to file a complaint or a grievance on a matter of alleged employment discrimination must elect to raise the matter under either part 1614 or the negotiated grievance procedure, but not both. The record reveals that appellant filed a grievance concerning his 10-day suspension on October 2, 1998. The record, however, does not contain a copy of the collective bargaining agreement. Without a copy of the collective bargaining agreement, we are unable to determine whether allegations of discrimination are permitted under the negotiated grievance procedure. In light of the fact that we are unable to determine whether the negotiated grievance procedure permits allegations of discrimination, we find that the agency failed to substantiate the bases for its final decision. See Marshall v. Department of the Navy, EEOC Request No. 05910685 (September 6, 1991). Accordingly, the agency's decision to dismiss the first allegation of appellant's complaint is REVERSED. | Christopher T. Semien, )
Appellant, )
)
v. ) Appeal No. 01992262
) Agency No. 5-99-5015
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency 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. The final agency decision was issued on December
22, 1998. The appeal was postmarked January 25, 1999. Accordingly,
the appeal is timely (see 29 C.F.R. §1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.<1>
ISSUES PRESENTED
The issues presented are:
whether the agency properly dismissed the first allegation of appellant's
complaint on the grounds that appellant elected to pursue the matter
raised therein under the agency's negotiated grievance procedure; and
whether the agency properly dismissed allegations 2 and 4 of appellant's
complaint on the grounds that appellant failed to initiate contact with
an EEO Counselor in a timely manner.
BACKGROUND
Appellant, an Electronics Technician, GS-12, initiated contact with an EEO
Counselor on September 18, 1998. On November 5, 1998, appellant filed a
formal EEO complaint wherein he alleged that he had been discriminated
against on the bases of his race (African-American) and color (black)
when:
1. On September 3, 1998, appellant received a 10-day suspension for
disreputable conduct.
2. On July 8, 1998, the agency denied appellant's request for a temporary
change in duty station and a transfer to another group.
3. On August 27, 1998, management suggested that he write a letter
acknowledging guilt for the issues leading to his 10-day suspension.
4. In February 1996, appellant made a derogatory comment to a female
employee and was suspended for one day.
In its final decision, the agency dismissed the first allegation of
appellant's complaint on the grounds that appellant elected to proceed
pursuant to the agency's negotiated grievance procedure. The agency
determined that appellant raised his 10-day suspension when he filed
a grievance on October 2, 1998, pursuant to the negotiated grievance
procedure. Allegations 2 and 4 were dismissed on the grounds that
appellant failed to contact an EEO Counselor in a timely manner. The
agency determined that appellant's contact of an EEO Counselor was more
than 45 days after the incidents that occurred in February 1996 and on
July 8, 1998, respectively. Allegation 3 was accepted for investigation.
In a letter to the agency dated January 5, 1999, with regard to
allegation 1, appellant stated that he was instructed by his union and
the EEO Counselor to file a grievance about union violations other than
discrimination, and that discrimination complaints would be addressed in
the EEO process. Appellant states on appeal that he would not have filed
his grievances had he known that his EEO complaint would be dismissed for
the aforementioned grounds. With respect to the dismissal of allegations
2 and 4, appellant claims that he was unaware of any time frames for
contacting an EEO Counselor until after his initial contact with an EEO
Counselor in September 1998. Appellant further claims that at the time
that he was denied a transfer, he did not know what the EEO process was
and he only learned about the EEO process because a coworker mentioned
it to him. Finally, appellant states with regard to allegation 4 that
on or about November 1, 1998, he learned through a conversation with a
coworker that a white employee was not disciplined after being involved
in an incident very similar to that for which appellant received a one
day suspension.
By letter dated January 15, 1999, the agency informed appellant that it
did not accept allegation 1 because appellant filed several grievances
pertaining to the 10-day suspension. As for allegations 2 and 4, the
agency stated that it had been informed by appellant's work facility
that there is a posting of the current EEO process on the employees'
bulletin board.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. §1614.301(a) provides in relevant part that
when a person is employed by an agency subject to 5 U.S.C. §7121(d) and
is covered by a collective bargaining agreement that permits allegations
of discrimination to be raised in a negotiated grievance procedure, a
person wishing to file a complaint or a grievance on a matter of alleged
employment discrimination must elect to raise the matter under either
part 1614 or the negotiated grievance procedure, but not both.
The record reveals that appellant filed a grievance concerning his
10-day suspension on October 2, 1998. The record, however, does not
contain a copy of the collective bargaining agreement. Without a copy of
the collective bargaining agreement, we are unable to determine whether
allegations of discrimination are permitted under the negotiated grievance
procedure. In light of the fact that we are unable to determine whether
the negotiated grievance procedure permits allegations of discrimination,
we find that the agency failed to substantiate the bases for its
final decision. See Marshall v. Department of the Navy, EEOC Request
No. 05910685 (September 6, 1991). Accordingly, the agency's decision
to dismiss the first allegation of appellant's complaint is REVERSED.
Allegation 1 is hereby remanded for further processing pursuant to the
ORDER below.
EEOC Regulation 29 C.F.R. §1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. §1614.105(a)(2) provides that the agency or the
Commission shall extend the 45-day time limit when the individual shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not have
known that the discriminatory matter or personnel action occurred, that
despite due diligence he or she was prevented by circumstances beyond his
or her control from contacting the counselor within the time limits, or
for other reasons considered sufficient by the agency or the Commission.
It is the Commission's policy that constructive knowledge will be
imputed to an employee when an employer has fulfilled its obligation
of informing employees of their rights and obligations under Title VII.
Thompson v. Department of the Army, EEOC Request No. 05910474 (September
12, 1991) (citing Kale v. Combined Insurance Co. of America, 861 F.2d 746
(1st Cir. 1988).
The Commission has held that information in an EEO Counselor's report
regarding posting of EEO information was inadequate to support application
of a constructive notice rule. Pride v. United States Postal Service,
EEOC Request No. 05930134 (August 19, 1993). The Commission found in
Pride that the agency had merely made a generalized affirmation that
it posted EEO information. Id. The Commission found that it could not
conclude that appellant's contact of an EEO Counselor was untimely without
specific evidence that the poster contained notice of the time limit. Id.
Appellant alleged that he was discriminated against on July 8, 1998,
when his request for a temporary change in duty station and a transfer
to another group was denied, and in February 1996, when he was suspended
for one day because he made a derogatory comment to a female employee.
Appellant did not initiate contact with an EEO Counselor until September
18, 1998, after the expiration of the 45-day limitation period. However,
we note that appellant claims that he was unaware of the 45-day limitation
period for contacting an EEO Counselor until after he initiated contact
with the EEO Counselor in September 1998. We note that the agency
stated in its letter to appellant dated January 15, 1999, that it had
been informed by appellant's work facility that there is a posting of the
current EEO process on the employees' bulletin board. We find that this
assertion by the agency that it posted EEO information is insufficient.
The agency has not submitted a copy of the relevant EEO poster nor has
the agency submitted an affidavit from an official at appellant's work
facility stating that an EEO poster containing the 45-day limitation
period was posted in a conspicuous location at the facility for a
significant amount of time during the time period of February 1996 -
August 1998. Consequently, we find that this matter must be remanded
to the agency for a supplemental investigation as to whether appellant
had actual or constructive notice of the 45-day limitation period for
contacting an EEO Counselor. Accordingly, the agency's decision to
dismiss allegations 2 and 4 of appellant's complaint on the grounds of
untimely EEO contact is VACATED. Allegations 2 and 4 are hereby REMANDED
for further processing pursuant to the ORDER below.
ORDER
The agency is ORDERED to investigate the issue of whether during the
relevant time period, it posted EEO information on display, or in some
other manner provided EEO information to appellant, that specifically
referred to the time limit for contacting an EEO Counselor. The agency
shall gather any other evidence necessary to determine when appellant
learned of the time limit for contacting an EEO Counselor. Within thirty
(30) calendar days of the date this decision becomes final, the agency
shall issue a notice of processing or a determination that allegations
2 and 4 will not be processed after it determines whether appellant
had actual or constructive notice of the time limit for contacting an
EEO Counselor or acted in a timely manner once he obtained actual or
constructive knowledge.
A copy of the notice of processing or determination not to process
regarding allegations 2 and 4 must be sent to the Compliance Officer as
referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. §1614.503 (a). The appellant 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. §§ 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. §§ 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. §1614.410.
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 (R0993)
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. 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:
November 5, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1The record does not establish when
appellant received the final agency decision. Absent evidence to
the contrary, we find that the instant appeal was timely filed.
| [
"Marshall v. Department of the Navy, EEOC Request No. 05910685 (September 6, 1991)",
"Title VII. Thompson v. Department of the Army, EEOC Request No. 05910474 (September 12, 1991)",
"Pride v. United States Postal Service, EEOC Request No. 05930134 (August 19, 1993)",
"861 F.2d 746"
] | [
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0.04776209220290184,
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0.08399201929569244,
0.07318741828203201,
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0.041331131011247635,
0.0369151271879673,
-0.012179512530565262,
-0.027072208002209663,
0.007022... | |
223 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01992262.txt | 01992262.txt | TXT | text/plain | 17,031 | November 5, 1999 | Appeal Number: 01992262
Background:
Appellant, an Electronics Technician, GS-12, initiated contact with an EEO
Counselor on September 18, 1998. On November 5, 1998, appellant filed a
formal EEO complaint wherein he alleged that he had been discriminated
against on the bases of his race (African-American) and color (black)
when:
1. On September 3, 1998, appellant received a 10-day suspension for
disreputable conduct.
2. On July 8, 1998, the agency denied appellant's request for a temporary
change in duty station and a transfer to another group.
3. On August 27, 1998, management suggested that he write a letter
acknowledging guilt for the issues leading to his 10-day suspension.
4. In February 1996, appellant made a derogatory comment to a female
employee and was suspended for one day.
In its final decision, the agency dismissed the first allegation of
appellant's complaint on the grounds that appellant elected to proceed
pursuant to the agency's negotiated grievance procedure. The agency
determined that appellant raised his 10-day suspension when he filed
a grievance on October 2, 1998, pursuant to the negotiated grievance
procedure. Allegations 2 and 4 were dismissed on the grounds that
appellant failed to contact an EEO Counselor in a timely manner. The
agency determined that appellant's contact of an EEO Counselor was more
than 45 days after the incidents that occurred in February 1996 and on
July 8, 1998, respectively. Allegation 3 was accepted for investigation.
In a letter to the agency dated January 5, 1999, with regard to
allegation 1, appellant stated that he was instructed by his union and
the EEO Counselor to file a grievance about union violations other than
discrimination, and that discrimination complaints would be addressed in
the EEO process. Appellant states on appeal that he would not have filed
his grievances had he known that his EEO complaint would be dismissed for
the aforementioned grounds. With respect to the dismissal of allegations
2 and 4, appellant claims that he was unaware of any time frames for
contacting an EEO Counselor until after his initial contact with an EEO
Counselor in September 1998. Appellant further claims that at the time
that he was denied a transfer, he did not know what the EEO process was
and he only learned about the EEO process because a coworker mentioned
it to him. Finally, appellant states with regard to allegation 4 that
on or about November 1, 1998, he learned through a conversation with a
coworker that a white employee was not disciplined after being involved
in an incident very similar to that for which appellant received a one
day suspension.
By letter dated January 15, 1999, the agency informed appellant that it
did not accept allegation 1 because appellant filed several grievances
pertaining to the 10-day suspension. As for allegations 2 and 4, the
agency stated that it had been informed by appellant's work facility
that there is a posting of the current EEO process on the employees'
bulletin board.
Legal Analysis:
EEOC Regulation 29 C.F.R. §1614.301(a) provides in relevant part that
when a person is employed by an agency subject to 5 U.S.C. §7121(d) and
is covered by a collective bargaining agreement that permits allegations
of discrimination to be raised in a negotiated grievance procedure, a
person wishing to file a complaint or a grievance on a matter of alleged
employment discrimination must elect to raise the matter under either
part 1614 or the negotiated grievance procedure, but not both.
The record reveals that appellant filed a grievance concerning his
10-day suspension on October 2, 1998. The record, however, does not
contain a copy of the collective bargaining agreement. Without a copy of
the collective bargaining agreement, we are unable to determine whether
allegations of discrimination are permitted under the negotiated grievance
procedure. In light of the fact that we are unable to determine whether
the negotiated grievance procedure permits allegations of discrimination,
we find that the agency failed to substantiate the bases for its
final decision. See Marshall v. Department of the Navy, EEOC Request
No. 05910685 (September 6, 1991).
Final Decision:
Accordingly, the appeal is timely (see 29 C.F.R. §1614.402(a)), and is accepted in accordance with EEOC Order No. 960, as amended.<1> ISSUES PRESENTED The issues presented are: whether the agency properly dismissed the first allegation of appellant's complaint on the grounds that appellant elected to pursue the matter raised therein under the agency's negotiated grievance procedure; and whether the agency properly dismissed allegations 2 and 4 of appellant's complaint on the grounds that appellant failed to initiate contact with an EEO Counselor in a timely manner. BACKGROUND Appellant, an Electronics Technician, GS-12, initiated contact with an EEO Counselor on September 18, 1998. On November 5, 1998, appellant filed a formal EEO complaint wherein he alleged that he had been discriminated against on the bases of his race (African-American) and color (black) when: 1. On September 3, 1998, appellant received a 10-day suspension for disreputable conduct. 2. On July 8, 1998, the agency denied appellant's request for a temporary change in duty station and a transfer to another group. 3. On August 27, 1998, management suggested that he write a letter acknowledging guilt for the issues leading to his 10-day suspension. 4. In February 1996, appellant made a derogatory comment to a female employee and was suspended for one day. In its final decision, the agency dismissed the first allegation of appellant's complaint on the grounds that appellant elected to proceed pursuant to the agency's negotiated grievance procedure. The agency determined that appellant raised his 10-day suspension when he filed a grievance on October 2, 1998, pursuant to the negotiated grievance procedure. Allegations 2 and 4 were dismissed on the grounds that appellant failed to contact an EEO Counselor in a timely manner. The agency determined that appellant's contact of an EEO Counselor was more than 45 days after the incidents that occurred in February 1996 and on July 8, 1998, respectively. Allegation 3 was accepted for investigation. In a letter to the agency dated January 5, 1999, with regard to allegation 1, appellant stated that he was instructed by his union and the EEO Counselor to file a grievance about union violations other than discrimination, and that discrimination complaints would be addressed in the EEO process. Appellant states on appeal that he would not have filed his grievances had he known that his EEO complaint would be dismissed for the aforementioned grounds. With respect to the dismissal of allegations 2 and 4, appellant claims that he was unaware of any time frames for contacting an EEO Counselor until after his initial contact with an EEO Counselor in September 1998. Appellant further claims that at the time that he was denied a transfer, he did not know what the EEO process was and he only learned about the EEO process because a coworker mentioned it to him. Finally, appellant states with regard to allegation 4 that on or about November 1, 1998, he learned through a conversation with a coworker that a white employee was not disciplined after being involved in an incident very similar to that for which appellant received a one day suspension. By letter dated January 15, 1999, the agency informed appellant that it did not accept allegation 1 because appellant filed several grievances pertaining to the 10-day suspension. As for allegations 2 and 4, the agency stated that it had been informed by appellant's work facility that there is a posting of the current EEO process on the employees' bulletin board. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. §1614.301(a) provides in relevant part that when a person is employed by an agency subject to 5 U.S.C. §7121(d) and is covered by a collective bargaining agreement that permits allegations of discrimination to be raised in a negotiated grievance procedure, a person wishing to file a complaint or a grievance on a matter of alleged employment discrimination must elect to raise the matter under either part 1614 or the negotiated grievance procedure, but not both. The record reveals that appellant filed a grievance concerning his 10-day suspension on October 2, 1998. The record, however, does not contain a copy of the collective bargaining agreement. Without a copy of the collective bargaining agreement, we are unable to determine whether allegations of discrimination are permitted under the negotiated grievance procedure. In light of the fact that we are unable to determine whether the negotiated grievance procedure permits allegations of discrimination, we find that the agency failed to substantiate the bases for its final decision. See Marshall v. Department of the Navy, EEOC Request No. 05910685 (September 6, 1991). Accordingly, the agency's decision to dismiss the first allegation of appellant's complaint is REVERSED. | Christopher T. Semien v. Department of Transportation
01992262
November 5, 1999
Christopher T. Semien, )
Appellant, )
)
v. ) Appeal No. 01992262
) Agency No. 5-99-5015
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency 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. The final agency decision was issued on December
22, 1998. The appeal was postmarked January 25, 1999. Accordingly,
the appeal is timely (see 29 C.F.R. §1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.<1>
ISSUES PRESENTED
The issues presented are:
whether the agency properly dismissed the first allegation of appellant's
complaint on the grounds that appellant elected to pursue the matter
raised therein under the agency's negotiated grievance procedure; and
whether the agency properly dismissed allegations 2 and 4 of appellant's
complaint on the grounds that appellant failed to initiate contact with
an EEO Counselor in a timely manner.
BACKGROUND
Appellant, an Electronics Technician, GS-12, initiated contact with an EEO
Counselor on September 18, 1998. On November 5, 1998, appellant filed a
formal EEO complaint wherein he alleged that he had been discriminated
against on the bases of his race (African-American) and color (black)
when:
1. On September 3, 1998, appellant received a 10-day suspension for
disreputable conduct.
2. On July 8, 1998, the agency denied appellant's request for a temporary
change in duty station and a transfer to another group.
3. On August 27, 1998, management suggested that he write a letter
acknowledging guilt for the issues leading to his 10-day suspension.
4. In February 1996, appellant made a derogatory comment to a female
employee and was suspended for one day.
In its final decision, the agency dismissed the first allegation of
appellant's complaint on the grounds that appellant elected to proceed
pursuant to the agency's negotiated grievance procedure. The agency
determined that appellant raised his 10-day suspension when he filed
a grievance on October 2, 1998, pursuant to the negotiated grievance
procedure. Allegations 2 and 4 were dismissed on the grounds that
appellant failed to contact an EEO Counselor in a timely manner. The
agency determined that appellant's contact of an EEO Counselor was more
than 45 days after the incidents that occurred in February 1996 and on
July 8, 1998, respectively. Allegation 3 was accepted for investigation.
In a letter to the agency dated January 5, 1999, with regard to
allegation 1, appellant stated that he was instructed by his union and
the EEO Counselor to file a grievance about union violations other than
discrimination, and that discrimination complaints would be addressed in
the EEO process. Appellant states on appeal that he would not have filed
his grievances had he known that his EEO complaint would be dismissed for
the aforementioned grounds. With respect to the dismissal of allegations
2 and 4, appellant claims that he was unaware of any time frames for
contacting an EEO Counselor until after his initial contact with an EEO
Counselor in September 1998. Appellant further claims that at the time
that he was denied a transfer, he did not know what the EEO process was
and he only learned about the EEO process because a coworker mentioned
it to him. Finally, appellant states with regard to allegation 4 that
on or about November 1, 1998, he learned through a conversation with a
coworker that a white employee was not disciplined after being involved
in an incident very similar to that for which appellant received a one
day suspension.
By letter dated January 15, 1999, the agency informed appellant that it
did not accept allegation 1 because appellant filed several grievances
pertaining to the 10-day suspension. As for allegations 2 and 4, the
agency stated that it had been informed by appellant's work facility
that there is a posting of the current EEO process on the employees'
bulletin board.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. §1614.301(a) provides in relevant part that
when a person is employed by an agency subject to 5 U.S.C. §7121(d) and
is covered by a collective bargaining agreement that permits allegations
of discrimination to be raised in a negotiated grievance procedure, a
person wishing to file a complaint or a grievance on a matter of alleged
employment discrimination must elect to raise the matter under either
part 1614 or the negotiated grievance procedure, but not both.
The record reveals that appellant filed a grievance concerning his
10-day suspension on October 2, 1998. The record, however, does not
contain a copy of the collective bargaining agreement. Without a copy of
the collective bargaining agreement, we are unable to determine whether
allegations of discrimination are permitted under the negotiated grievance
procedure. In light of the fact that we are unable to determine whether
the negotiated grievance procedure permits allegations of discrimination,
we find that the agency failed to substantiate the bases for its
final decision. See Marshall v. Department of the Navy, EEOC Request
No. 05910685 (September 6, 1991). Accordingly, the agency's decision
to dismiss the first allegation of appellant's complaint is REVERSED.
Allegation 1 is hereby remanded for further processing pursuant to the
ORDER below.
EEOC Regulation 29 C.F.R. §1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. §1614.105(a)(2) provides that the agency or the
Commission shall extend the 45-day time limit when the individual shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not have
known that the discriminatory matter or personnel action occurred, that
despite due diligence he or she was prevented by circumstances beyond his
or her control from contacting the counselor within the time limits, or
for other reasons considered sufficient by the agency or the Commission.
It is the Commission's policy that constructive knowledge will be
imputed to an employee when an employer has fulfilled its obligation
of informing employees of their rights and obligations under Title VII.
Thompson v. Department of the Army, EEOC Request No. 05910474 (September
12, 1991) (citing Kale v. Combined Insurance Co. of America, 861 F.2d 746
(1st Cir. 1988).
The Commission has held that information in an EEO Counselor's report
regarding posting of EEO information was inadequate to support application
of a constructive notice rule. Pride v. United States Postal Service,
EEOC Request No. 05930134 (August 19, 1993). The Commission found in
Pride that the agency had merely made a generalized affirmation that
it posted EEO information. Id. The Commission found that it could not
conclude that appellant's contact of an EEO Counselor was untimely without
specific evidence that the poster contained notice of the time limit.
Id.
Appellant alleged that he was discriminated against on July 8, 1998,
when his request for a temporary change in duty station and a transfer
to another group was denied, and in February 1996, when he was suspended
for one day because he made a derogatory comment to a female employee.
Appellant did not initiate contact with an EEO Counselor until September
18, 1998, after the expiration of the 45-day limitation period. However,
we note that appellant claims that he was unaware of the 45-day limitation
period for contacting an EEO Counselor until after he initiated contact
with the EEO Counselor in September 1998. We note that the agency
stated in its letter to appellant dated January 15, 1999, that it had
been informed by appellant's work facility that there is a posting of the
current EEO process on the employees' bulletin board. We find that this
assertion by the agency that it posted EEO information is insufficient.
The agency has not submitted a copy of the relevant EEO poster nor has
the agency submitted an affidavit from an official at appellant's work
facility stating that an EEO poster containing the 45-day limitation
period was posted in a conspicuous location at the facility for a
significant amount of time during the time period of February 1996 -
August 1998. Consequently, we find that this matter must be remanded
to the agency for a supplemental investigation as to whether appellant
had actual or constructive notice of the 45-day limitation period for
contacting an EEO Counselor. Accordingly, the agency's decision to
dismiss allegations 2 and 4 of appellant's complaint on the grounds of
untimely EEO contact is VACATED. Allegations 2 and 4 are hereby REMANDED
for further processing pursuant to the ORDER below.
ORDER
The agency is ORDERED to investigate the issue of whether during the
relevant time period, it posted EEO information on display, or in some
other manner provided EEO information to appellant, that specifically
referred to the time limit for contacting an EEO Counselor. The agency
shall gather any other evidence necessary to determine when appellant
learned of the time limit for contacting an EEO Counselor. Within thirty
(30) calendar days of the date this decision becomes final, the agency
shall issue a notice of processing or a determination that allegations
2 and 4 will not be processed after it determines whether appellant
had actual or constructive notice of the time limit for contacting an
EEO Counselor or acted in a timely manner once he obtained actual or
constructive knowledge.
A copy of the notice of processing or determination not to process
regarding allegations 2 and 4 must be sent to the Compliance Officer as
referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. §1614.503 (a). The appellant 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. §§ 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. §§ 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. §1614.410.
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 (R0993)
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. 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:
November 5, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1The record does not establish when appellant received the final agency
decision. Absent evidence to the contrary, we find that the instant appeal
was timely filed. | [
"Marshall v. Department of the Navy, EEOC Request No. 05910685 (September 6, 1991)",
"Title VII. Thompson v. Department of the Army, EEOC Request No. 05910474 (September 12, 1991)",
"Pride v. United States Postal Service, EEOC Request No. 05930134 (August 19, 1993)",
"861 F.2d 746"
] | [
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0.07198382914066315,
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0.016... | |
224 | https://www.eeoc.gov/sites/default/files/decisions/2024_11_15/2024003304.pdf | 2024003304.pdf | PDF | application/pdf | 15,451 | Lyman D .,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. | April 3, 2024 | Appeal Number: 2024003304
Background:
At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the Agency’s Columbia Processing and Distribution Center (P&DC) facility in Columbia, South Carolina. On September 6, 2023, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability (diabetes ) and reprisal for prior protected EEO activity when: on September
12, 2022, Complainant was issued a Notice of Removal, and subsequently, Complainant was not returned to work until February 15, 2023.
The Agency accepted the foregoing claim and conducted an investigation into the matter. After completion of the investigation, Complainant timely
requested a hearing before an EEOC Administrative Judge (AJ).
While the case was pending before the AJ, the Agency filed a Motion to
Dismiss the complaint on the grounds that Complainant’s EEO counselor
contact was untimely. The AJ intended to give Complainant an opportunity
to respond to the Agency’s Motion during the Initial Conference on March 20, 2024, but Complainant failed to appear . The AJ then issued a Notice of
Intent to Issue Sanctions and Order to Show Cause directing Complainant to file respond by 5:00 pm on March 28, 2024. The Order further directed
Complainant to respond to the Agency’s Motion to Dismiss by 5:00 pm on March 28, 2024.
Complainant responded at 1:07 pm on March 28, 2024 that he was unaware he had to attend the Initial Conference, and that he would “promptly provide a thorough response” to the Agency’s Motion to Dismiss. However, Complainant did not file a response by 5:00 pm on March 28, 2024 as directed.
On March 29, 2024, t he AJ granted the Agency’s Motion to Dismiss, finding
that Complainant’s EEO counselor contact was untimely as a matter of law
and the complaint should be dismissed pursuant to 29 C.F.R. § 1614.107(a)(2) .
The Agency issued a Final Action on April 3, 2024 fully implementing the AJ’s
Legal Analysis:
the Commission, which requires the Commission to examine the record without regard to the factual and legal determinations of the previous decision maker and issue its decision based on the Commission’s own
assessment of the record and its interpretation of the law. 29 C.F.R. §
1614.405(a). The Commission should construe the complaint in the light most favorable to the complainant and take the complaint’s allegations as true. See Cobb v. Department of the Treasury , EEOC Request No. 05970077
(March 13, 1997). Thus, all reasonable inferences that may be drawn from the complaint’s allegations must be made in favor of the complainant.
ANALYSIS
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within forty -five (45)
days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty -five (45) days of the effective date of the
action. EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides for the dismissal of complaints where the complainant did not initiate contact with an EEO Counselor within the time frames set forth at 29 C.F.R. § 1614.105(a)(1) .
EEOC Regulation 29 C.F.R. § 1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission. Here, Complainant testified that he was placed off work on September 12,
2022 as a result of the Notice of Removal. (Complaint File, p. 155). The
record also reflects he signed the Notice of Removal on September 12, 2022.
(Complaint File, p. 251). Thus , in order for his EEO counselor contact to be
timely, he needed to contact an EEO counselor about his removal on or
before October 27, 2022. Complainant did not contact an EEO counselor
about his removal until March 20, 2023, nearly five months late.
As explanation, Complainant states he was not aware of the specific time limits for contacting an EEO counselor. However, the record reflects that he had previously filed an informal EEO complaint (Complaint File, p. 243) and
he completed NO FEAR training on June 20, 2022 and again on July 3, 2022,
which covers the EEO process and deadlines for contacting an EEO counselor
(Agency Brief, Ex. C) . Additionally, Poster 72, which described the procedure
for filing an EEO claim and the time limits for contacting an EEO counselor is displayed conspicuously displayed in the facility where Complainant worked
(Agency Brief, Ex. B). Thus, we are not persuaded by Complainant’s assertion that he was unaware of the deadline for contacting an EEO counselor.
Complainant also noted that he did timely file a grievance regarding this
matter. However, the Commission has consistently held that use of internal agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Candace C. v. U.S.
Postal Serv. , EEOC Appeal No. 2023001673 (Apr. 10, 2023); Kramer v. U.S.
Postal Serv. , EEOC Appeal No. 01954021 (Oct. 5, 1995); Williams v. U.S.
Postal Serv. , EEOC Request No. 05910291 (Apr. 25, 1991).
Complainant further states that he was incapacitated due to mental distress from the loss of his job and other personal tragedies. W e have consistently
held, in cases involving physical or mental health difficulties, that an
extension is warranted only where an individual is so incapacitated by his
condition that he is unable to meet the regulatory time limits. See Davis v.
U.S. Postal Serv., EEOC Request No. 05980475 (August 6, 1998). Claims of
incapacity must be supported by medical evidence of incapacity. See Crear
v. U.S. Postal Serv., EEOC Request No. 05920700 (Oct. 29, 1992)
(complaints of decreased mental and physical capacity, without medical
evidence of incapacity, does not warrant extension of time limits); cf.
Maddux v. U.S. Postal Serv. , EEOC Request No. 05980302 (Aug. 5, 1999)
(psychiatrist's statement that complainant's mental condition rendered her unable to comprehend her legal rights and responsibilities during the
relevant time frame was found sufficient to justify extension of time limit);
Sohal v. U.S. Postal Serv., EEOC Request No. 05970461 (Apr. 24, 1997)
(psychiatrist's statement that complainant's severe depression and anxiety rendered him unable to make decisions found sufficient to justify extension). Evidence that a complainant has sought treatment does not, without evidence of incapacity, justify an extension of time. See Galbreath v. Dep’t
of the Navy, EEOC Request No. 05980927 (Nov. 4, 1999) (evidence that
complainant was under great mental stress, and received an evaluation/treatment, did not render the complainant incapacitated). See
also Dos Santos v. Dep’t of Veteran’s Affairs, EEOC Request No. 01992476
(Jan. 3, 2001); Lindsey T. v EEOC , EEOC Request No. 0120162544 (Nov. 27,
2019); King v. Dep’t of Veteran’s Affairs , EEOC Request No. 01A04960 (Dec.
22, 2000). Here, Complainant has not produced medical evidence of incapacity.
Complainant has not provided sufficient justification to warrant tolling of the
time limits. His EEO counselor contact was not timely . As such, the Agency
correctly dismissed the complaint. | Lyman D .,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Field Areas and Regions),
Agency.
Appeal No. 2024003304
Hearing No. 430- 2024- 00151X
Agency No. 1C -531-0152- 23
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from the Agency's decision dated April 3, 2024, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the reasons
presented below, we AFFIRM the Agency’s final decision dismissing Complainant’s complaint.
ISSUES PRESENTED
Whether the Agency properly dismissed Complainant’s formal complaint pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO counselor contact.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the Agency’s Columbia Processing and Distribution Center (P&DC) facility in Columbia, South Carolina. On September 6, 2023, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability (diabetes ) and reprisal for prior protected EEO activity when: on September
12, 2022, Complainant was issued a Notice of Removal, and subsequently, Complainant was not returned to work until February 15, 2023.
The Agency accepted the foregoing claim and conducted an investigation into the matter. After completion of the investigation, Complainant timely
requested a hearing before an EEOC Administrative Judge (AJ).
While the case was pending before the AJ, the Agency filed a Motion to
Dismiss the complaint on the grounds that Complainant’s EEO counselor
contact was untimely. The AJ intended to give Complainant an opportunity
to respond to the Agency’s Motion during the Initial Conference on March 20, 2024, but Complainant failed to appear . The AJ then issued a Notice of
Intent to Issue Sanctions and Order to Show Cause directing Complainant to file respond by 5:00 pm on March 28, 2024. The Order further directed
Complainant to respond to the Agency’s Motion to Dismiss by 5:00 pm on March 28, 2024.
Complainant responded at 1:07 pm on March 28, 2024 that he was unaware he had to attend the Initial Conference, and that he would “promptly provide a thorough response” to the Agency’s Motion to Dismiss. However, Complainant did not file a response by 5:00 pm on March 28, 2024 as directed.
On March 29, 2024, t he AJ granted the Agency’s Motion to Dismiss, finding
that Complainant’s EEO counselor contact was untimely as a matter of law
and the complaint should be dismissed pursuant to 29 C.F.R. § 1614.107(a)(2) .
The Agency issued a Final Action on April 3, 2024 fully implementing the AJ’s
decision to dismiss the complaint. Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that dismissal of his case would be unjust.
In support of this, Complainant asserts his delay in contacting the EEO
counselor was due to his lack of awareness of the process. Complainant
stated that he was not familiar with the avenues available to address
discrimination, which delayed his action. He states that “[d ]espite having
filed a previous informal EEO complaint in 2021 ” he was “unaware of the
specific time limits for initiating contact with an EEO counselor” and he was not made aware of the discrimination action until it had already occurred. He states that these circumstances coupled with his timely grievance (which he also argues does not foreclose pursuit of the EEO process) warrant consideration for an extension of time limits. Complainant further argues he was incapacitat ed due to mental distress from the loss of his job and other
personal tragedies that led to a state of depression and emotional distress.
The Agency contends on appeal that Complainant’s EEO counselor contact was untimely because it occurred 189 days after the personnel issue in
question (his removal). The Agency states that Complainant did not
demonstrate entitlement to an extension of the time limits because
Complainant had actual and constructive knowledge of the time limits through his prior EEO activity, posting of appropriate notices in the
workplace, and training modules which explained the EEO process and time limits for initiating counselor contact. The Agency noted that Complainant
alleged incapacity but he did not provide any documentation to substantiate
this.
STANDARD OF REVIEW
The Agency’s decision to dismiss a complaint is subject to de novo review by
the Commission, which requires the Commission to examine the record without regard to the factual and legal determinations of the previous decision maker and issue its decision based on the Commission’s own
assessment of the record and its interpretation of the law. 29 C.F.R. §
1614.405(a). The Commission should construe the complaint in the light most favorable to the complainant and take the complaint’s allegations as true. See Cobb v. Department of the Treasury , EEOC Request No. 05970077
(March 13, 1997). Thus, all reasonable inferences that may be drawn from the complaint’s allegations must be made in favor of the complainant.
ANALYSIS
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within forty -five (45)
days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty -five (45) days of the effective date of the
action. EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides for the dismissal of complaints where the complainant did not initiate contact with an EEO Counselor within the time frames set forth at 29 C.F.R. § 1614.105(a)(1) .
EEOC Regulation 29 C.F.R. § 1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission. Here, Complainant testified that he was placed off work on September 12,
2022 as a result of the Notice of Removal. (Complaint File, p. 155). The
record also reflects he signed the Notice of Removal on September 12, 2022.
(Complaint File, p. 251). Thus , in order for his EEO counselor contact to be
timely, he needed to contact an EEO counselor about his removal on or
before October 27, 2022. Complainant did not contact an EEO counselor
about his removal until March 20, 2023, nearly five months late.
As explanation, Complainant states he was not aware of the specific time limits for contacting an EEO counselor. However, the record reflects that he had previously filed an informal EEO complaint (Complaint File, p. 243) and
he completed NO FEAR training on June 20, 2022 and again on July 3, 2022,
which covers the EEO process and deadlines for contacting an EEO counselor
(Agency Brief, Ex. C) . Additionally, Poster 72, which described the procedure
for filing an EEO claim and the time limits for contacting an EEO counselor is displayed conspicuously displayed in the facility where Complainant worked
(Agency Brief, Ex. B). Thus, we are not persuaded by Complainant’s assertion that he was unaware of the deadline for contacting an EEO counselor.
Complainant also noted that he did timely file a grievance regarding this
matter. However, the Commission has consistently held that use of internal agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Candace C. v. U.S.
Postal Serv. , EEOC Appeal No. 2023001673 (Apr. 10, 2023); Kramer v. U.S.
Postal Serv. , EEOC Appeal No. 01954021 (Oct. 5, 1995); Williams v. U.S.
Postal Serv. , EEOC Request No. 05910291 (Apr. 25, 1991).
Complainant further states that he was incapacitated due to mental distress from the loss of his job and other personal tragedies. W e have consistently
held, in cases involving physical or mental health difficulties, that an
extension is warranted only where an individual is so incapacitated by his
condition that he is unable to meet the regulatory time limits. See Davis v.
U.S. Postal Serv., EEOC Request No. 05980475 (August 6, 1998). Claims of
incapacity must be supported by medical evidence of incapacity. See Crear
v. U.S. Postal Serv., EEOC Request No. 05920700 (Oct. 29, 1992)
(complaints of decreased mental and physical capacity, without medical
evidence of incapacity, does not warrant extension of time limits); cf.
Maddux v. U.S. Postal Serv. , EEOC Request No. 05980302 (Aug. 5, 1999)
(psychiatrist's statement that complainant's mental condition rendered her unable to comprehend her legal rights and responsibilities during the
relevant time frame was found sufficient to justify extension of time limit);
Sohal v. U.S. Postal Serv., EEOC Request No. 05970461 (Apr. 24, 1997)
(psychiatrist's statement that complainant's severe depression and anxiety rendered him unable to make decisions found sufficient to justify extension). Evidence that a complainant has sought treatment does not, without evidence of incapacity, justify an extension of time. See Galbreath v. Dep’t
of the Navy, EEOC Request No. 05980927 (Nov. 4, 1999) (evidence that
complainant was under great mental stress, and received an evaluation/treatment, did not render the complainant incapacitated). See
also Dos Santos v. Dep’t of Veteran’s Affairs, EEOC Request No. 01992476
(Jan. 3, 2001); Lindsey T. v EEOC , EEOC Request No. 0120162544 (Nov. 27,
2019); King v. Dep’t of Veteran’s Affairs , EEOC Request No. 01A04960 (Dec.
22, 2000). Here, Complainant has not produced medical evidence of incapacity.
Complainant has not provided sufficient justification to warrant tolling of the
time limits. His EEO counselor contact was not timely . As such, the Agency
correctly dismissed the complaint.
CONCLUSION
The Agency's final decision dismissing the formal complaint is AFFIRMED for the reasons discussed above.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0124.1)
The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration . A party shall have
twenty (20) calendar days from receipt of another party’s request for
reconsideration within which to submit a brief or statement in opposition.
See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD -110), at Chap. 9 § VII.B (Aug. 5,
2015).
Complainant should submit their request for reconsideration, and any statement or brief in support of their request, via the EEOC Public Portal,
which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx
Alternatively, Complainant can submit their request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. §
1614.604.
An agency’s request for reconsideration must be submitted in digital format
via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files their request via the EEOC Public Portal, in which case no proof of service is required.
Failure to file within the 30 -day time period will result in dismissal of the
party’s request for reconsideration as untimely, unless extenuating
circumstances prevented the timely filing of the request. Any supporting
documentation must be submitted together with the 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(f).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0124)
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 their 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny
these types of requests.
Such requests do not alter the time limits for filing a civil action (please read
the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden’s si
Carlton M. Hadden, Director
Office of Federal Operations
October 21, 2024
Date | [
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"Kramer v. U.S. Postal Serv., EEOC Appeal No. 01954021 (Oct. 5, 1995)",
"Williams v. U.S. Postal Serv., EEOC Request No. 05910291... | [
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225 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/2019000488.pdf | 2019000488.pdf | PDF | application/pdf | 15,691 | Bernardina N,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. | August 3, 2018 | Appeal Number: 2019000488
Background:
During the period at issue, Compla inant worked as a Registered Nurse for the Agency in West
Roxbury, Massachusetts. On July 12, 2018, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on sex (female-pregnancy). In a final decision dated A ugust 3, 2018, the Agency determined that Complainant was alleging
problems with the processing of a prior EEO complaint and that she was denied official time regarding work related to her prior EEO complaint. The Agency found that to the extent that Complainant was alleging problems or errors with the
processing of her prior EEO complaint, Agency Case No. 200J -0523- 2017102027, these matters
were dismissed for alleging dissatisfaction with the processing of a prior complaint.
Regarding Complainant’s claim that she was denied official time regarding her work on her prior
EEO complaint, the Agency dismissed this claim for failure to state a claim and untimely EEO Counselor contact.
The instant appeal followed. On appeal, Complainant reiterates that he r leave should be restored
for the time she worked on her prior EEO complaint while on maternity leave. Complainant
asserts that she had to drive to and from her work facility to use a computer to view and send encrypted information.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.107(a)(8) provides that an agency shall dismiss a complaint
that alleges dissatisfaction with the processing of a previously filed complaint. Chapter Five of the EEOC Management Directive 110 (MD -110) (Aug. 5, 2015) defines such a complaint as a
“spin off” complaint. MD -110 indicates further that “spin- off” complaints should be referred to
the agency official responsible for complaint processing and/or processed as part of the original complaint. See id.; see also Complainant v. Dep't of Health and Human Servs
., EEOC Appeal
No. 05910159 (Feb. 11, 1991).
We find that to the extent Complainant i s alleging problems ( i.e. problems with the investigator,
being sent the incorrect advisement of rights etc.) with the processing of her prior EEO
complaint, the Agency properly dismissed these matters as they constitute spin -off complaints.
The record reflects that via memorandum dated March 9, 2018, an Agency official responded to Complainant’s concerns regarding the processing of her prior complaint. The Agency found that any errors did not have a material effect on the processing of her prior EEO complaint. Commission records reflect that the Agency issued a final decision on her prior EEO complaint and tha t Complainant appealed the Agency’s final decision to the Commission’s Office of
Federal Operations (OFO). OFO affirmed the Agency’s final decision on her prior EEO complaint. EEOC Appeal No. 2019000361 (Feb. 6, 2019). To the extent , however, that the A gency dismissed Complainant’s claim that she was denied
official time for work on her prior EEO complaint, Agency Case No. 200J -0523- 2017102027,
we find that the Agency’s dismissal was not proper. Claims of denial of official time under 29
C.F.R. § 1614.605(b) may be adjudicated by the Commission. The question of whether such an alleged denial is discriminatory is irrelevant to whether there is a violation of 29 C.F.R. § 1614.105(b). Thus, the Agency’s procedural dismissal of Complainant’s denial of official time claim was not appropriate. See O’Brien v. Dep’t of the Army
, EEOC Appeal No. 01A35297
(July 20, 2004).
The record reflects that on Janaury 8, 2018, the Agency issued a memorandum regarding Complainant’s request for official time for work performed on her prior EEO complaint. The
Agency granted her eight hours of official time. The Agency in its January 8, 2018 memorandum noted that “ employees are required to request official time in writing f rom the
supervisor pr ior to actually taking any official time to work on his/her EEO complaint.” The
Agency found that Complainant did not get approval in advance of performing her EEO activity.
In addition, the Agency found that Complainant was not in duty status during thi s time but was
in an approved FMLA status.
The Agency also addressed the reasonableness of Complainant’s request for official time.
Specifically, the Agency in its January 8, 2018 memorandum stated, “[r]egarding the
reasonableness of your request it appears that 264 hours of official time is an excessive a mount.”
However, the Agency noted miscommunication between the EEO investigator and Complainant .
Specifically, the Agency stated that, “it does appear there may have been some
miscommunication betw een you and the EEO investigator, who engaged you a day after giving
birth, upon which the two of you determined that it was in your best interest to proceed during your maternity leave to complete the investigation on time.” Based on the foregoing, the A gency
approved eight hours of official time. We find that based on the specific and unique circumstances of this matter, Complainant should
be awarded 16 hours of official time. EEOC Regulation 29 C.F.R. § 1614. 605(b) provides, in pertinent part, that “[i]f the complainant is an employee of the Agency he or she shall have a
reasonable amount of official time, if otherwise on duty, to prepare the complaint and respond to agency and EEOC requests for information.” A complainant and an agency should reach an
agreement about the amount of official time to be used prior to the complainant’s use of such time. EEO Management Directive for 29 C.F.R. Part 1614 (MD -110), Chap. 6 VII(C) (rev. Aug.
5, 2015). Complainant, on appeal and below, asserts that she was engaged by the EEO Investigator shortly after giving birth via C -section. Complainant states that the EEO Investigator should have held
her investigat ion in abeyance until after her maternity leave. Complainant, on appeal, asserts
that management was aw are that she was working on EEO matters at her work facility during her
maternity leave. However, we concur with the Agency’s determination that the record does not
reflect that Complainant was actually approved for a specified amount of official time bef ore
working on her prior EEO case. However, we also concur with the Agency that there seems to have been some miscommunication between Complainant and the EEO Investiga tior regarding a
pressing need for Complainant to complete the EEO investigation prior to her return from
maternity leave.
The actual number of hours to which a com plainant is entitled will vary, depending on the nature
and complexity of the complaint and considering the mission of the agency and the agency’s need to have its employees avai lable to perform their normal duties on a regular basis. Because
investigations are conducted by agency or Commission personnel, the above regulation does not envision large amounts of official time for preparation purposes. Consequently, “reasonable” with respect to preparation time is generally defined in terms of hours, not in terms of days,
weeks, or months, although what is reasonable depends on the individual circumstances of each complaint. EEO Management Directive for 29 C.F.R. Part 1614 (MD -110), Chap. 6 VII(C) (rev.
Aug. 5, 2015). The record reflects that Complainant , in pertinent part, completed an affidavit,
reviewed the report of investigation, and completed a rebuttal. We find Complainant’s request
for over 200 hours of official time to be excessive. Based on the foregoing, and the specific and
unique circumstances of this matter, we find that 16 hours represents a reasonable amount
official time. | Bernardina N,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 2019000488
Agency No. 200H-0523-2018103605
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated August 3, 2018, dismissing a formal
complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
BACKGROUND
During the period at issue, Compla inant worked as a Registered Nurse for the Agency in West
Roxbury, Massachusetts. On July 12, 2018, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on sex (female-pregnancy). In a final decision dated A ugust 3, 2018, the Agency determined that Complainant was alleging
problems with the processing of a prior EEO complaint and that she was denied official time regarding work related to her prior EEO complaint. The Agency found that to the extent that Complainant was alleging problems or errors with the
processing of her prior EEO complaint, Agency Case No. 200J -0523- 2017102027, these matters
were dismissed for alleging dissatisfaction with the processing of a prior complaint.
Regarding Complainant’s claim that she was denied official time regarding her work on her prior
EEO complaint, the Agency dismissed this claim for failure to state a claim and untimely EEO Counselor contact.
The instant appeal followed. On appeal, Complainant reiterates that he r leave should be restored
for the time she worked on her prior EEO complaint while on maternity leave. Complainant
asserts that she had to drive to and from her work facility to use a computer to view and send encrypted information.
ANALYSIS AND FINDIN GS
EEOC Regulation 29 C.F.R. § 1614.107(a)(8) provides that an agency shall dismiss a complaint
that alleges dissatisfaction with the processing of a previously filed complaint. Chapter Five of the EEOC Management Directive 110 (MD -110) (Aug. 5, 2015) defines such a complaint as a
“spin off” complaint. MD -110 indicates further that “spin- off” complaints should be referred to
the agency official responsible for complaint processing and/or processed as part of the original complaint. See id.; see also Complainant v. Dep't of Health and Human Servs
., EEOC Appeal
No. 05910159 (Feb. 11, 1991).
We find that to the extent Complainant i s alleging problems ( i.e. problems with the investigator,
being sent the incorrect advisement of rights etc.) with the processing of her prior EEO
complaint, the Agency properly dismissed these matters as they constitute spin -off complaints.
The record reflects that via memorandum dated March 9, 2018, an Agency official responded to Complainant’s concerns regarding the processing of her prior complaint. The Agency found that any errors did not have a material effect on the processing of her prior EEO complaint. Commission records reflect that the Agency issued a final decision on her prior EEO complaint and tha t Complainant appealed the Agency’s final decision to the Commission’s Office of
Federal Operations (OFO). OFO affirmed the Agency’s final decision on her prior EEO complaint. EEOC Appeal No. 2019000361 (Feb. 6, 2019). To the extent , however, that the A gency dismissed Complainant’s claim that she was denied
official time for work on her prior EEO complaint, Agency Case No. 200J -0523- 2017102027,
we find that the Agency’s dismissal was not proper. Claims of denial of official time under 29
C.F.R. § 1614.605(b) may be adjudicated by the Commission. The question of whether such an alleged denial is discriminatory is irrelevant to whether there is a violation of 29 C.F.R. § 1614.105(b). Thus, the Agency’s procedural dismissal of Complainant’s denial of official time claim was not appropriate. See O’Brien v. Dep’t of the Army
, EEOC Appeal No. 01A35297
(July 20, 2004).
The record reflects that on Janaury 8, 2018, the Agency issued a memorandum regarding Complainant’s request for official time for work performed on her prior EEO complaint. The
Agency granted her eight hours of official time. The Agency in its January 8, 2018 memorandum noted that “ employees are required to request official time in writing f rom the
supervisor pr ior to actually taking any official time to work on his/her EEO complaint.” The
Agency found that Complainant did not get approval in advance of performing her EEO activity.
In addition, the Agency found that Complainant was not in duty status during thi s time but was
in an approved FMLA status.
The Agency also addressed the reasonableness of Complainant’s request for official time.
Specifically, the Agency in its January 8, 2018 memorandum stated, “[r]egarding the
reasonableness of your request it appears that 264 hours of official time is an excessive a mount.”
However, the Agency noted miscommunication between the EEO investigator and Complainant .
Specifically, the Agency stated that, “it does appear there may have been some
miscommunication betw een you and the EEO investigator, who engaged you a day after giving
birth, upon which the two of you determined that it was in your best interest to proceed during your maternity leave to complete the investigation on time.” Based on the foregoing, the A gency
approved eight hours of official time. We find that based on the specific and unique circumstances of this matter, Complainant should
be awarded 16 hours of official time. EEOC Regulation 29 C.F.R. § 1614. 605(b) provides, in pertinent part, that “[i]f the complainant is an employee of the Agency he or she shall have a
reasonable amount of official time, if otherwise on duty, to prepare the complaint and respond to agency and EEOC requests for information.” A complainant and an agency should reach an
agreement about the amount of official time to be used prior to the complainant’s use of such time. EEO Management Directive for 29 C.F.R. Part 1614 (MD -110), Chap. 6 VII(C) (rev. Aug.
5, 2015). Complainant, on appeal and below, asserts that she was engaged by the EEO Investigator shortly after giving birth via C -section. Complainant states that the EEO Investigator should have held
her investigat ion in abeyance until after her maternity leave. Complainant, on appeal, asserts
that management was aw are that she was working on EEO matters at her work facility during her
maternity leave. However, we concur with the Agency’s determination that the record does not
reflect that Complainant was actually approved for a specified amount of official time bef ore
working on her prior EEO case. However, we also concur with the Agency that there seems to have been some miscommunication between Complainant and the EEO Investiga tior regarding a
pressing need for Complainant to complete the EEO investigation prior to her return from
maternity leave.
The actual number of hours to which a com plainant is entitled will vary, depending on the nature
and complexity of the complaint and considering the mission of the agency and the agency’s need to have its employees avai lable to perform their normal duties on a regular basis. Because
investigations are conducted by agency or Commission personnel, the above regulation does not envision large amounts of official time for preparation purposes. Consequently, “reasonable” with respect to preparation time is generally defined in terms of hours, not in terms of days,
weeks, or months, although what is reasonable depends on the individual circumstances of each complaint. EEO Management Directive for 29 C.F.R. Part 1614 (MD -110), Chap. 6 VII(C) (rev.
Aug. 5, 2015). The record reflects that Complainant , in pertinent part, completed an affidavit,
reviewed the report of investigation, and completed a rebuttal. We find Complainant’s request
for over 200 hours of official time to be excessive. Based on the foregoing, and the specific and
unique circumstances of this matter, we find that 16 hours represents a reasonable amount
official time.
Accordingly, we AFFIRM the Agency’s dismissal regarding her claim that her prior EEO complaint was not properly processed. However, we REMAND this matter to the Agency for
further proce ssing as set forth in the ORDER below regarding the claim of the denial of official
time.
ORDER
To the extent it has not already done so, the Agency is ordered to:
1. Within 60 (sixty) calendar days from the date this decision is issued, the Agency shall restore 16 (sixteen) hours of leave to Complainant.
The Agency shall provide documentation that it has restored 16 hours of leave to Complainant in accordance with the paragraph entitled “Implementation of the Commission’s Decision.”
IMPLEMENTATION OF THE COMMISSION’S DECISION
(K0618)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (F edSEP)
supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance repor t in the digital format
required by the Commission. See
29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative.
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 Commiss ion’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 (M0617)
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 interpret ation 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 O perations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See
29 C.F.R . § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD -110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportuni ty Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deeme d 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP).
See 29 C.F.R. § 1614.403(g). 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 (T0610)
This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which
the Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. 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 your appeal with the Comm ission, until such time as the Agency issues its final decision on
your complaint. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you ma y
request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must su bmit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil a ction (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
February 15, 2019
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226 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120162247.txt | 0120162247.txt | TXT | text/plain | 13,864 | Jeramy C.,1 Complainant, v. Sally Jewell, Secretary, Department of the Interior (National Park Service), Agency. | June 1, 2016 | Appeal Number: 0120162247
Background:
At the time of events giving rise to this complaint, Complainant worked as an Office Automation Specialist / EEO Specialist, GS-0260-09, at the Agency's Army Reserve Headquarters EEO Office in Fort McCoy, Wisconsin.
On March 7, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability (mental and physical) and reprisal ("position as an EEO Specialist") when:
1. On September 2, 2015, Complainant was not selected for two positions, for which he applied under vacancy announcements MWRC-15-MP-0174 and MWRC-15-MP-0175; and
2. The EEO Specialist failed to engage him in the pre-complaint process.
The pertinent record shows that on June 30, 2015, he applied for an Administrative Support Assistant (OA) GS-0303-06 position with the National Park Service (NPS). The position was advertised under Announcement MWRC-15-MP-0174. His application was accepted and his name was placed on the certificate of eligible candidates. He was not interviewed or selected, because he was not deemed one of the top three candidates, and the Agency chose to interview only the top three candidates.
Complainant acknowledged that on September 2, 2015, he received "two disposition letters from the Midwest National Park Service (NPS) stating, with regard to each application, that 'another candidate was selected for this position." Complainant claims that the letters did not provide him with EEO contact information.
On September 9, 2015, Complainant sent an email to the Midwest NPS Human Resources Office ("SHRO") asking for a formal review of the hiring procedures and the selection process for the positions. He also informed them that he believed that special consideration was given to the other candidates, because the selecting officials already knew, or worked with, one of the candidates and Complainant asserted that this gave the other candidate an unfair advantage.
On September 11, 2015, the NPS SHRO sent Complainant an email, advising him that a determination was made to interview the top three referred candidates. On September 16, 2015, the NPS HR Specialist provided Complainant with information for filing an EEO complaint.
On September 18, 2015, Complainant filed a Freedom of Information Act (FOIA) request, in which Complainant stated his intention to file a complaint.
Complainant made EEO contact on January 6, 2016. He named, as the responsible officials, the Assistant Superintendent Isle Royale National Park (S1), and the HR specialist Central Servicing HR Office (S2). Complainant also stated that he wanted to call the FOIA Officer, as a witness, to testify that the Agency failed to provide a timely response to his FOIA request.
Between January 7, 2016 and February 10, 2016, Complainant was assisted in the processing of his EEO complaint. He states that "his issue is with the person who assisted [him] and failed to assist," because "[the Specialist] was trying to derail [his] EEO complaint rather than resolve the matter in order to protect her peers in the NPS SHRO." He faults the Specialist for her efforts and stated that she "failed to have or do the interactive process with him and never discussed his Rights and Responsibilities and did not offer Alternative Dispute Resolution to him." When the Agency offered him ADR, he declined.
Complainant made 23 claims in his formal complaint. Complainant disputes that this is a spin-off complaint. Complainant asserted that the "hiring process for this position was done incorrectly." He claimed that the Disability Program Manager's (DPM's) contact information should have been provided in the vacancy announcement. He claimed that the EEO website says "You generally have 45 days from the date of discrimination to contact an EEO counselor, but it does not say you must do so." He acknowledged that the USA JOBS provided a Reasonable Accommodation and EEO Policy statement web-link at the bottom of the job announcement, but stated "this requires an extra step to click on it." He stated that he should have been included in the "top 3" referred candidates due to his qualifications. He was a GS-09 at the time of his application, applying for a GS-6 position.
Complainant acknowledged that he received information, but stated that it was not geared to individuals with disabilities and that he felt intimidated and uncomfortable in raising his claims, because the only number to contact on the job vacancy announcement was the Midwestern Office.
Complainant conceded that he did not make timely contact with the NPS EEO Office, although the Agency provided him with the EEO contact information.
The Agency Decision
The Agency concluded that Complainant's claim should be dismissed because he failed to contact the EEO Counselor within the allotted 45-day period. The Agency noted that, using September 18, 2015 as the date on which he knew, he had 45 days, or until November 2, 2015, to contact the EEO Counselor. The Agency reasoned that when he filed a FOIA request regarding the two vacancy announcements, he demonstrated a reasonable suspicion that he had been discriminated against. Because he waited until January 6, 2016, the Agency concluded that his EEO contact was 65 days late.
With regard to claim 2, the Agency determined that this was a spin-off complaint, because it is a complaint about the processing of an existing complaint. In addition, the Agency stated that it issued a letter to the agency official responsible for the complaint processing regarding Complainant's concerns. The Agency concluded that his second claim should be dismissed for that reason.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that he was unaware of the reasonable suspension rule and was waiting until he received a response to his FOIA request for adequate proof of his discrimination claim. He argued that he is "disappointed they failed to look at all the claims [he] presented" and "they made a poor decision in dismissing [his] complaint, especially since [he] clearly show[ed] a pattern of discrimination in [his] formal complaint." He asserts the EEOC regulation, and wording on the website, should be clearer and that the vacancy announcement must include the contact information for the Disability Program Manager.
Legal Analysis:
EEOC regulation, and wording on the website, should be clearer and that the vacancy announcement must include the contact information for the Disability Program Manager.
ANALYSIS AND FINDINGS
Timeliness
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that the complaint of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory, or, in the case of a personnel action, within 45 days of the effective date of the action.
EEOC Regulations provide that the Agency or the Commission shall extend the time limits when the individual or the record shows that there existed circumstances beyond the complainant's control that prevented timely contact with an EEO counselor.
The record discloses that the alleged discriminatory event occurred on September 2, 2015, but Complainant did not initiate contact with an EEO Counselor until January 6, 2016, which is beyond the forty-five (45) day limitation period. Complainant formally filed an EEO complaint, alleging discrimination with regard to his not being interviewed and his dissatisfaction with the selection process.
In the instant case, the record is clear as to when Complainant was provided notice of his non-selections. Further, the Agency showed that Complainant was made aware of any EEO rights that he had with regard to the claims that he attempted to raise with the Deputy in October of 2012. Although he clearly put the Agency on notice of his belief that he was being discriminated against, he did not file a complaint.
The Supreme Court has held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (June 10, 2002). The Court further held, however, that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id.
We find that Complainant has not provided a good reason to reverse the dismissal because Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
Spin-Off Complaint
The EEOC regulation 29 C.F.R 1614.107(a)(8) provides for the dismissal of spin-off complaints. Complainant was challenging the adequacy of the assistance that he was provided during the application process and after he made contact with the EEO counselor. We agree that these claims were properly dismissed as spin-off complaints.
Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. | Jeramy C.,1
Complainant,
v.
Sally Jewell,
Secretary,
Department of the Interior
(National Park Service),
Agency.
Appeal No. 0120162247
Agency No. DOINPS160150
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision, dated June 1, 2016, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
We accept the appeal.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Office Automation Specialist / EEO Specialist, GS-0260-09, at the Agency's Army Reserve Headquarters EEO Office in Fort McCoy, Wisconsin.
On March 7, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability (mental and physical) and reprisal ("position as an EEO Specialist") when:
1. On September 2, 2015, Complainant was not selected for two positions, for which he applied under vacancy announcements MWRC-15-MP-0174 and MWRC-15-MP-0175; and
2. The EEO Specialist failed to engage him in the pre-complaint process.
The pertinent record shows that on June 30, 2015, he applied for an Administrative Support Assistant (OA) GS-0303-06 position with the National Park Service (NPS). The position was advertised under Announcement MWRC-15-MP-0174. His application was accepted and his name was placed on the certificate of eligible candidates. He was not interviewed or selected, because he was not deemed one of the top three candidates, and the Agency chose to interview only the top three candidates.
Complainant acknowledged that on September 2, 2015, he received "two disposition letters from the Midwest National Park Service (NPS) stating, with regard to each application, that 'another candidate was selected for this position." Complainant claims that the letters did not provide him with EEO contact information.
On September 9, 2015, Complainant sent an email to the Midwest NPS Human Resources Office ("SHRO") asking for a formal review of the hiring procedures and the selection process for the positions. He also informed them that he believed that special consideration was given to the other candidates, because the selecting officials already knew, or worked with, one of the candidates and Complainant asserted that this gave the other candidate an unfair advantage.
On September 11, 2015, the NPS SHRO sent Complainant an email, advising him that a determination was made to interview the top three referred candidates. On September 16, 2015, the NPS HR Specialist provided Complainant with information for filing an EEO complaint.
On September 18, 2015, Complainant filed a Freedom of Information Act (FOIA) request, in which Complainant stated his intention to file a complaint.
Complainant made EEO contact on January 6, 2016. He named, as the responsible officials, the Assistant Superintendent Isle Royale National Park (S1), and the HR specialist Central Servicing HR Office (S2). Complainant also stated that he wanted to call the FOIA Officer, as a witness, to testify that the Agency failed to provide a timely response to his FOIA request.
Between January 7, 2016 and February 10, 2016, Complainant was assisted in the processing of his EEO complaint. He states that "his issue is with the person who assisted [him] and failed to assist," because "[the Specialist] was trying to derail [his] EEO complaint rather than resolve the matter in order to protect her peers in the NPS SHRO." He faults the Specialist for her efforts and stated that she "failed to have or do the interactive process with him and never discussed his Rights and Responsibilities and did not offer Alternative Dispute Resolution to him." When the Agency offered him ADR, he declined.
Complainant made 23 claims in his formal complaint. Complainant disputes that this is a spin-off complaint. Complainant asserted that the "hiring process for this position was done incorrectly." He claimed that the Disability Program Manager's (DPM's) contact information should have been provided in the vacancy announcement. He claimed that the EEO website says "You generally have 45 days from the date of discrimination to contact an EEO counselor, but it does not say you must do so." He acknowledged that the USA JOBS provided a Reasonable Accommodation and EEO Policy statement web-link at the bottom of the job announcement, but stated "this requires an extra step to click on it." He stated that he should have been included in the "top 3" referred candidates due to his qualifications. He was a GS-09 at the time of his application, applying for a GS-6 position.
Complainant acknowledged that he received information, but stated that it was not geared to individuals with disabilities and that he felt intimidated and uncomfortable in raising his claims, because the only number to contact on the job vacancy announcement was the Midwestern Office.
Complainant conceded that he did not make timely contact with the NPS EEO Office, although the Agency provided him with the EEO contact information.
The Agency Decision
The Agency concluded that Complainant's claim should be dismissed because he failed to contact the EEO Counselor within the allotted 45-day period. The Agency noted that, using September 18, 2015 as the date on which he knew, he had 45 days, or until November 2, 2015, to contact the EEO Counselor. The Agency reasoned that when he filed a FOIA request regarding the two vacancy announcements, he demonstrated a reasonable suspicion that he had been discriminated against. Because he waited until January 6, 2016, the Agency concluded that his EEO contact was 65 days late.
With regard to claim 2, the Agency determined that this was a spin-off complaint, because it is a complaint about the processing of an existing complaint. In addition, the Agency stated that it issued a letter to the agency official responsible for the complaint processing regarding Complainant's concerns. The Agency concluded that his second claim should be dismissed for that reason.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that he was unaware of the reasonable suspension rule and was waiting until he received a response to his FOIA request for adequate proof of his discrimination claim. He argued that he is "disappointed they failed to look at all the claims [he] presented" and "they made a poor decision in dismissing [his] complaint, especially since [he] clearly show[ed] a pattern of discrimination in [his] formal complaint." He asserts the EEOC regulation, and wording on the website, should be clearer and that the vacancy announcement must include the contact information for the Disability Program Manager.
ANALYSIS AND FINDINGS
Timeliness
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that the complaint of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory, or, in the case of a personnel action, within 45 days of the effective date of the action.
EEOC Regulations provide that the Agency or the Commission shall extend the time limits when the individual or the record shows that there existed circumstances beyond the complainant's control that prevented timely contact with an EEO counselor.
The record discloses that the alleged discriminatory event occurred on September 2, 2015, but Complainant did not initiate contact with an EEO Counselor until January 6, 2016, which is beyond the forty-five (45) day limitation period. Complainant formally filed an EEO complaint, alleging discrimination with regard to his not being interviewed and his dissatisfaction with the selection process.
In the instant case, the record is clear as to when Complainant was provided notice of his non-selections. Further, the Agency showed that Complainant was made aware of any EEO rights that he had with regard to the claims that he attempted to raise with the Deputy in October of 2012. Although he clearly put the Agency on notice of his belief that he was being discriminated against, he did not file a complaint.
The Supreme Court has held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (June 10, 2002). The Court further held, however, that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id.
We find that Complainant has not provided a good reason to reverse the dismissal because Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
Spin-Off Complaint
The EEOC regulation 29 C.F.R 1614.107(a)(8) provides for the dismissal of spin-off complaints. Complainant was challenging the adequacy of the assistance that he was provided during the application process and after he made contact with the EEO counselor. We agree that these claims were properly dismissed as spin-off complaints.
Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
October 3, 2016
__________________
Date
------------------------------------------------------------
------------------------------------------------------------
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227 | https://www.eeoc.gov/sites/default/files/decisions/2020_12_07/2019002312.pdf | 2019002312.pdf | PDF | application/pdf | 13,025 | Georgianne B .1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. | February 11, 2019 | Appeal Number: 2019002312
Background:
At the time of events giving rise to this complaint, Complainant worked as a Transportation
Assistant at the Agency’s Naval Base in San Diego, California. On September 28, 2018, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. We note that Complainant provided the EEO Counselor a written
response explaining her delay in contacting the counselor. Complainant indicated that she was consumed with medical appointments and issues regarding her housing.
On January 14, 2019, Compla inant filed a formal complaint alleging that the Agency subjected
her to a hostile work environment and discrimination on the bases of disability, age , and in reprisal
(instant EEO complaint) with respect to denial of reasonable accommodations, work condit ions,
and constructive discharge evidenced by the 16 original claims that form the bas is of her
allegations. Complainant’s claims encompass incidents from April 3, 2018 through June 25, 2018,
when she submitted her resignation from the Agency . Complainant’s resignation was effective
July 5, 2018.
The Agency issued its final decision dismissing Complainant’s EEO complaint pursuant to 29 C.F.R. §1614.107(a)(2) for failure to contact the EEO Counselor in a timely manner.
CONTENTIONS ON APPEAL
Complainant responds to the issue of timeliness of her EEO Counselor contact . For example, while
not having directly contacted the EEO office, Complainant note s that she had previously contacted
the Agency human resources specialist (HR Specialist) on June 6, 2018, regarding an allegation of
hostile work environment pertaining to an assignment with which she did not agree. Complainant
assert s that the email was forwarded to the EEO Director by one of the HR S pecialists .
Complainant state s that she did not hear back from the EEO Director prior to her resignation on
July 5, 2018. Complainant acknowledges that , after her departure she was occupied with securing
appropriate healthcare for herself and contacted an EEO Counselor as soon as she was available
to do so, which was on September 18, 2018. However, Complainant assert that her initial June 6,
2018 email to the HR specialists should be enough to make her complaint timely, even if her September 18, 2018 contact is not. Complainant also provide s num erous documents predominately
pertaining to the merits of her complaint.
The Agency does not provide an appellate response.
Legal Analysis:
Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R.
§ 1614.107(a)(2), for untimely EEO Counselor contact.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Transportation
Assistant at the Agency’s Naval Base in San Diego, California. On September 28, 2018, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. We note that Complainant provided the EEO Counselor a written
response explaining her delay in contacting the counselor. Complainant indicated that she was consumed with medical appointments and issues regarding her housing.
On January 14, 2019, Compla inant filed a formal complaint alleging that the Agency subjected
her to a hostile work environment and discrimination on the bases of disability, age , and in reprisal
(instant EEO complaint) with respect to denial of reasonable accommodations, work condit ions,
and constructive discharge evidenced by the 16 original claims that form the bas is of her
allegations. Complainant’s claims encompass incidents from April 3, 2018 through June 25, 2018,
when she submitted her resignation from the Agency . Complainant’s resignation was effective
July 5, 2018.
The Agency issued its final decision dismissing Complainant’s EEO complaint pursuant to 29 C.F.R. §1614.107(a)(2) for failure to contact the EEO Counselor in a timely manner.
CONTENTIONS ON APPEAL
Complainant responds to the issue of timeliness of her EEO Counselor contact . For example, while
not having directly contacted the EEO office, Complainant note s that she had previously contacted
the Agency human resources specialist (HR Specialist) on June 6, 2018, regarding an allegation of
hostile work environment pertaining to an assignment with which she did not agree. Complainant
assert s that the email was forwarded to the EEO Director by one of the HR S pecialists .
Complainant state s that she did not hear back from the EEO Director prior to her resignation on
July 5, 2018. Complainant acknowledges that , after her departure she was occupied with securing
appropriate healthcare for herself and contacted an EEO Counselor as soon as she was available
to do so, which was on September 18, 2018. However, Complainant assert that her initial June 6,
2018 email to the HR specialists should be enough to make her complaint timely, even if her September 18, 2018 contact is not. Complainant also provide s num erous documents predominately
pertaining to the merits of her complaint.
The Agency does not provide an appellate response.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105,
§1614.106 and §1614.204(c), unless the Agency extends the time limits in accordance with §1614.604(c). EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission.
Additionally, a complainant satisfies the requirement of counselor contact by contacting an agency
official “ logically connected” with the EEO process, even if that official is not an EEO Counselor,
and by exhibiting an intent to begin the EEO process. See Jayna A. v. U.S. Postal Serv., EEOC
Appeal No. 2019000179 (Nov. 29, 2018) citing Cristantiello v. Dep’t of the Army , EEOC Appeal
No. 01992817 (Dec. 19, 2000), Cox v. Dep’t of Hous. and Urban Dev., EEOC Request N o.
05980083 (July 30, 1998); Allen v. U .S. Postal Serv ., EEOC Request No. 05950933 (July 9,
1996); Jones v. Dep't of the Army, EEOC Request No. 05900435 (Sept. 7, 1990).
Here, on appeal, Complainant noted that on June 6, 2018, she contacted the Agency HR Specialists
regarding an allegation of hostile work environment and her opposition to work assignments that she was receiving. Complainant noted that she later received a response stating that her email was forwarded to the EEO Director, but she did not receive a response prior to her July 5, 2018
resignation. However, Complainant’s email to the HR specialists regarded work assignments that
she disagreed with, and does not indicate her intention to initiate the EEO process. Jayna A. v.
U.S. Postal Serv. , EEOC Appeal No. 2019000179 (Nov. 29, 2018). We find no evidence to support
Complainant's contention that her June 6, 2018 email constituted a request for EEO counseling.
Moreover, the Commission has consistently held that , when a complainant asserts that physical or
mental health difficulties prevented contact with a counselor within 45 days , an extension is only
warranted where an individual is so incapacitated by her condition that she is unable to meet the time limits. See Trevor H. v. Dep’t of Veterans Affairs , EEOC Appeal No. 2019004846 (Sept. 18,
2019) citing Mason v. U.S. Postal Serv., EEOC Appeal No. 0120091320 (June 11, 2010).
Hospitalization may constitute such a circumstance , but evidence that the complainant was under
a physician's care is not dispositive of the issue of whether the complainant was incapacitated. Josey v. Dep’ t of Health and Human Serv., EEOC Appeal No. 01990127 (Dec. 1,
1999). An assertion of medical incapa citation will not warrant an extension of the regulatory time -
limits when the complainant offers no documentation of the medical condition preventing timely contact with an EEO Counselor. Id.
In this case, the latest incident occurred on July 5, 2018, and Complainant did not c ontact an EEO
Counselor until September 28, 2018, beyond the 45-day time limit. When asked by the EEO
Counselor about the delay in her contact , Complainant provided a written response in which she
noted that her “time was consumed with doctor appointments and repairs in [her] new place…”.
Complainant noted that she had “called as soon as [she] had a chance which was 9/28/2018.”
Complainant also provided numerous document s that pertained to her health and stated that she
was preoccupied with finding appropriate healthcare. Despite the documentation provided, none
of the documentation indicate s that Complainant was so incapacitated during this time that she
could not make timely EEO Counselor contact. Thus, there is insuffici ent evidence of medical
incapacitation to warrant an extension of the 45-day time limit for initiating contact with a
counselor.
Final Decision:
Accordingly, the Agency's final decision dismissing the complaint is AFFIRMED. | Georgianne B .1
Complainant,
v.
Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.
Appeal No. 2019002312
Agency No. 19-62473-00143
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated February 11, 2019, dismissing her complaint of
unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as a mended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R.
§ 1614.107(a)(2), for untimely EEO Counselor contact.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Transportation
Assistant at the Agency’s Naval Base in San Diego, California. On September 28, 2018, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. We note that Complainant provided the EEO Counselor a written
response explaining her delay in contacting the counselor. Complainant indicated that she was consumed with medical appointments and issues regarding her housing.
On January 14, 2019, Compla inant filed a formal complaint alleging that the Agency subjected
her to a hostile work environment and discrimination on the bases of disability, age , and in reprisal
(instant EEO complaint) with respect to denial of reasonable accommodations, work condit ions,
and constructive discharge evidenced by the 16 original claims that form the bas is of her
allegations. Complainant’s claims encompass incidents from April 3, 2018 through June 25, 2018,
when she submitted her resignation from the Agency . Complainant’s resignation was effective
July 5, 2018.
The Agency issued its final decision dismissing Complainant’s EEO complaint pursuant to 29 C.F.R. §1614.107(a)(2) for failure to contact the EEO Counselor in a timely manner.
CONTENTIONS ON APPEAL
Complainant responds to the issue of timeliness of her EEO Counselor contact . For example, while
not having directly contacted the EEO office, Complainant note s that she had previously contacted
the Agency human resources specialist (HR Specialist) on June 6, 2018, regarding an allegation of
hostile work environment pertaining to an assignment with which she did not agree. Complainant
assert s that the email was forwarded to the EEO Director by one of the HR S pecialists .
Complainant state s that she did not hear back from the EEO Director prior to her resignation on
July 5, 2018. Complainant acknowledges that , after her departure she was occupied with securing
appropriate healthcare for herself and contacted an EEO Counselor as soon as she was available
to do so, which was on September 18, 2018. However, Complainant assert that her initial June 6,
2018 email to the HR specialists should be enough to make her complaint timely, even if her September 18, 2018 contact is not. Complainant also provide s num erous documents predominately
pertaining to the merits of her complaint.
The Agency does not provide an appellate response.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105,
§1614.106 and §1614.204(c), unless the Agency extends the time limits in accordance with §1614.604(c). EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission.
Additionally, a complainant satisfies the requirement of counselor contact by contacting an agency
official “ logically connected” with the EEO process, even if that official is not an EEO Counselor,
and by exhibiting an intent to begin the EEO process. See Jayna A. v. U.S. Postal Serv., EEOC
Appeal No. 2019000179 (Nov. 29, 2018) citing Cristantiello v. Dep’t of the Army , EEOC Appeal
No. 01992817 (Dec. 19, 2000), Cox v. Dep’t of Hous. and Urban Dev., EEOC Request N o.
05980083 (July 30, 1998); Allen v. U .S. Postal Serv ., EEOC Request No. 05950933 (July 9,
1996); Jones v. Dep't of the Army, EEOC Request No. 05900435 (Sept. 7, 1990).
Here, on appeal, Complainant noted that on June 6, 2018, she contacted the Agency HR Specialists
regarding an allegation of hostile work environment and her opposition to work assignments that she was receiving. Complainant noted that she later received a response stating that her email was forwarded to the EEO Director, but she did not receive a response prior to her July 5, 2018
resignation. However, Complainant’s email to the HR specialists regarded work assignments that
she disagreed with, and does not indicate her intention to initiate the EEO process. Jayna A. v.
U.S. Postal Serv. , EEOC Appeal No. 2019000179 (Nov. 29, 2018). We find no evidence to support
Complainant's contention that her June 6, 2018 email constituted a request for EEO counseling.
Moreover, the Commission has consistently held that , when a complainant asserts that physical or
mental health difficulties prevented contact with a counselor within 45 days , an extension is only
warranted where an individual is so incapacitated by her condition that she is unable to meet the time limits. See Trevor H. v. Dep’t of Veterans Affairs , EEOC Appeal No. 2019004846 (Sept. 18,
2019) citing Mason v. U.S. Postal Serv., EEOC Appeal No. 0120091320 (June 11, 2010).
Hospitalization may constitute such a circumstance , but evidence that the complainant was under
a physician's care is not dispositive of the issue of whether the complainant was incapacitated. Josey v. Dep’ t of Health and Human Serv., EEOC Appeal No. 01990127 (Dec. 1,
1999). An assertion of medical incapa citation will not warrant an extension of the regulatory time -
limits when the complainant offers no documentation of the medical condition preventing timely contact with an EEO Counselor. Id.
In this case, the latest incident occurred on July 5, 2018, and Complainant did not c ontact an EEO
Counselor until September 28, 2018, beyond the 45-day time limit. When asked by the EEO
Counselor about the delay in her contact , Complainant provided a written response in which she
noted that her “time was consumed with doctor appointments and repairs in [her] new place…”.
Complainant noted that she had “called as soon as [she] had a chance which was 9/28/2018.”
Complainant also provided numerous document s that pertained to her health and stated that she
was preoccupied with finding appropriate healthcare. Despite the documentation provided, none
of the documentation indicate s that Complainant was so incapacitated during this time that she
could not make timely EEO Counselor contact. Thus, there is insuffici ent evidence of medical
incapacitation to warrant an extension of the 45-day time limit for initiating contact with a
counselor.
CONCLUSION
Based on the foregoing, we find that Complainant has not provided sufficient justification for extending the appl icable time limit. Accordingly, the Agency's final decision dismissing the
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Commission may, in its discretion, reconsider this appellate decision if the complainant or the agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO)
within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration
elects to file a statement or brief in support of the request, that statement or brief must be filed
together with the request for reconsideration . A party shall have twenty (20) calend ar days
from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD -110), at Chap. 9 § VII.B (Aug. 5, 2015).
Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx .
Alternatively, complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or
statement or brief in opposition must also include proof of service on the other party, unless complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required.
Failure to file within the 30 -day time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for
reconsiderati on. 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden, Director Office of Federal Operations
September 21, 2020
Date | [
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228 | https://www.eeoc.gov/sites/default/files/decisions/2023_04_21/2023000437.pdf | 2023000437.pdf | PDF | application/pdf | 11,933 | Corie E.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. | October 3, 2022 | Appeal Number: 2023000437
Background:
During the period at issue, Complainant worked for the Agency as a Licensed Social Worker, Grade GS -12, at the Agency’s Health Care System i n Palo Alto, California. On August 9, 2017,
Complainant resigned from her employment with the Agency. On April 11, 2022, Complainant initiated contact with an Agency EEO Counselor to discuss
matters she believed to be discriminatory. The parties did not reach a resolution through informal EEO counseling. On July 5, 2022, Complainant filed the instant formal complaint alleging that the Agency subjected her to unlawful retaliation for prior protected EEO activity when:
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
2 2023000437
1. On June 21, 2017, Complainant’s s upervisor prevented her from filing an addendum to a
“no show” note for a clinic patient in violation of an established practice;
2. On June 26, 2017, Complainant’s supervisor falsified a Report of Contact on
Complainant in order to shift the blame to Compl ainant or words to that effect;
3. During August 2016, Complainant was the sole mental health provider for a panel of nearly 10,000 veterans;
4. During March 2017, Complainant was assigned a full patient caseload; and
5. During March 2017, Complainant was assigned the additional duty of training new
Mental Health providers and/or coworkers.
On October 3, 2022, the Agency issued a final decision dismissing the first two claims for failure to state a claim pursuant to 29 C.F.R. §1614.107(a)(1). Regarding Claim 1 and Claim 2, the
Agency reasoned that the matters that Complainant raised in her formal EEO complaint alleged mismanagement, as opposed to discrimination and should have been brought to the attention of the Agency’s Office of Inspector General as opposed to the EEO Counselor. Thereafter and for
all five claims, the Agency decided that Complainant’s EEO Counselor contact in April 2022 was untimely raised, because the matters alleged to be discriminatory occurred between August 2016 and June 2017. The Age ncy in essence, ultimately dismissed entire formal EEO complaint
as untimely under 29 C.F.R. §§ 1614.105(a)(1), which require s EEO Counselor contact within 45
calendar days the events or personnel actions that Complainant alleged were discriminatory.
The instant appeal followed. On appeal and through Counsel, Complainant asserted that her formal EEO complaint should not have been dismissed because it had sufficiently stated an overall justiciable claim of a retaliatory hostile work environment. Mor eover, Complainant’s
attorney argued that the final Agency decision inappropriately relied on a distinguishable EEOC merits decision which found no discrimination on whistleblower claims of fraud, waste, and abuse. Next, Complainant contended that her cla ims were indeed timely because during the time
of the events at issue, Complainant had reasonably attributed her supervisor’s overburdening her and blaming her to his incompetence as a manager. Counsel for Complainant maintained that it was not until Febr uary 27, 2022, that Complainant reasonably suspected the former supervisor’s
retaliatory motive because a co -worker had filed another EEO complaint alleging retaliation by
the same supervisor while naming Complainant as a key witness. Complainant’s Counse l
reasoned that Complainant’s contact with the EEO Counselor on April 11, 2022, was therefore
timely.
3 2023000437
Legal Analysis:
the Commission’s website.
2 2023000437
1. On June 21, 2017, Complainant’s s upervisor prevented her from filing an addendum to a
“no show” note for a clinic patient in violation of an established practice;
2. On June 26, 2017, Complainant’s supervisor falsified a Report of Contact on
Complainant in order to shift the blame to Compl ainant or words to that effect;
3. During August 2016, Complainant was the sole mental health provider for a panel of nearly 10,000 veterans;
4. During March 2017, Complainant was assigned a full patient caseload; and
5. During March 2017, Complainant was assigned the additional duty of training new
Mental Health providers and/or coworkers.
On October 3, 2022, the Agency issued a final decision dismissing the first two claims for failure to state a claim pursuant to 29 C.F.R. §1614.107(a)(1). Regarding Claim 1 and Claim 2, the
Agency reasoned that the matters that Complainant raised in her formal EEO complaint alleged mismanagement, as opposed to discrimination and should have been brought to the attention of the Agency’s Office of Inspector General as opposed to the EEO Counselor. Thereafter and for
all five claims, the Agency decided that Complainant’s EEO Counselor contact in April 2022 was untimely raised, because the matters alleged to be discriminatory occurred between August 2016 and June 2017. The Age ncy in essence, ultimately dismissed entire formal EEO complaint
as untimely under 29 C.F.R. §§ 1614.105(a)(1), which require s EEO Counselor contact within 45
calendar days the events or personnel actions that Complainant alleged were discriminatory.
The instant appeal followed. On appeal and through Counsel, Complainant asserted that her formal EEO complaint should not have been dismissed because it had sufficiently stated an overall justiciable claim of a retaliatory hostile work environment. Mor eover, Complainant’s
attorney argued that the final Agency decision inappropriately relied on a distinguishable EEOC merits decision which found no discrimination on whistleblower claims of fraud, waste, and abuse. Next, Complainant contended that her cla ims were indeed timely because during the time
of the events at issue, Complainant had reasonably attributed her supervisor’s overburdening her and blaming her to his incompetence as a manager. Counsel for Complainant maintained that it was not until Febr uary 27, 2022, that Complainant reasonably suspected the former supervisor’s
retaliatory motive because a co -worker had filed another EEO complaint alleging retaliation by
the same supervisor while naming Complainant as a key witness. Complainant’s Counse l
reasoned that Complainant’s contact with the EEO Counselor on April 11, 2022, was therefore
timely.
3 2023000437
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination be
brought to the attention of an EEO c ounse lor within forty -five (45) days of the date of the matter
alleged to be discriminatory or, in the case of a personnel action, within forty- five (45) days of
the effective date of the action. The Commission has long adopted a "reasonable suspicion"
standar d to determine when the forty -five (45) day limitation period is triggered. See Howard v.
Department of the Navy , EEOC Request No. 05970852 (February 11, 1999). Thus, the time
limitation is not triggered until a complainant reasonably suspects discrimina tion, but before all
the facts that support a charge of discrimination have become apparent. EEOC Regulation 29
C.F.R. § 1614.107(a)(2) provides for the dismissal of a complaint that fails to comply with the
applicable time limits.
Here, regardless of whether or not the alleged events are considered as independent claims or
together as a claim of harassment, it is undisputed that the last event occurred in 2017 and
Complainant did not first seek EEO counseling until April 2022, nearly five years later and well
beyond the 45- day limitation period. O n appeal , Complainant argues she did not reasonably
suspect an unlawful retaliatory motive for the events of 2016 and 2017 until late February 27,
2022. At that time, Complainant asserts she learned for the first time that a coworker had
identified Complainant as a potential witness in August 2016 in support of the coworker ’s own
EEO complaint . We are unpersuaded by this extremely speculative argument. Complainant
concedes she was never actually contacted by anyone to provide any testimony during the
processing of her cowork er’s complaint.
This Commission has consistently held that a c omplainant mus t pursue claims with due
diligence, or the doctrine of laches may apply. Becker v. U.S. Postal Serv., EEOC Appe al No.
01A45028 (Nov. 18, 2004) (finding that the doctrine of laches applied because a complainant waited more than two years from the date of t he alleged discriminatory events before contacting
an EEO Counselor). In the instant matter, Complainant contac ted an EEO counselor nearly five
years after Complainant’s 45 -day window for making timely EEO c ounselor contact closed.
Therefore, th e doctrine of laches mandates that we must dismiss the entire formal EEO
complaint for untimely EEO Counselor contact in accordance with 29 C.F.R. §§ 1614.105(a)(1) and 1614.107(a)(2). See Casey v. Dep't of Tran sp., EEOC Appeal No. 01A33700 (Sept. 16,
2003) (finding that complainant did not act with due diligence because he initiated the EEO process over four years after t he contested non- selection).
Final Decision:
Accordingly, the Agency's final decision dismissing the formal complaint is AFFIRMED. | Corie E.,1
Complainant,
v.
Denis R. McDonough,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 2023000437
Agency No. 200P-640-2022-145410
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated October 3, 2022, dismissing a formal complaint alleging unlawful employment discrimination in viola tion of Title VII of the C ivil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
BACKGROUND
During the period at issue, Complainant worked for the Agency as a Licensed Social Worker, Grade GS -12, at the Agency’s Health Care System i n Palo Alto, California. On August 9, 2017,
Complainant resigned from her employment with the Agency. On April 11, 2022, Complainant initiated contact with an Agency EEO Counselor to discuss
matters she believed to be discriminatory. The parties did not reach a resolution through informal EEO counseling. On July 5, 2022, Complainant filed the instant formal complaint alleging that the Agency subjected her to unlawful retaliation for prior protected EEO activity when:
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
2 2023000437
1. On June 21, 2017, Complainant’s s upervisor prevented her from filing an addendum to a
“no show” note for a clinic patient in violation of an established practice;
2. On June 26, 2017, Complainant’s supervisor falsified a Report of Contact on
Complainant in order to shift the blame to Compl ainant or words to that effect;
3. During August 2016, Complainant was the sole mental health provider for a panel of nearly 10,000 veterans;
4. During March 2017, Complainant was assigned a full patient caseload; and
5. During March 2017, Complainant was assigned the additional duty of training new
Mental Health providers and/or coworkers.
On October 3, 2022, the Agency issued a final decision dismissing the first two claims for failure to state a claim pursuant to 29 C.F.R. §1614.107(a)(1). Regarding Claim 1 and Claim 2, the
Agency reasoned that the matters that Complainant raised in her formal EEO complaint alleged mismanagement, as opposed to discrimination and should have been brought to the attention of the Agency’s Office of Inspector General as opposed to the EEO Counselor. Thereafter and for
all five claims, the Agency decided that Complainant’s EEO Counselor contact in April 2022 was untimely raised, because the matters alleged to be discriminatory occurred between August 2016 and June 2017. The Age ncy in essence, ultimately dismissed entire formal EEO complaint
as untimely under 29 C.F.R. §§ 1614.105(a)(1), which require s EEO Counselor contact within 45
calendar days the events or personnel actions that Complainant alleged were discriminatory.
The instant appeal followed. On appeal and through Counsel, Complainant asserted that her formal EEO complaint should not have been dismissed because it had sufficiently stated an overall justiciable claim of a retaliatory hostile work environment. Mor eover, Complainant’s
attorney argued that the final Agency decision inappropriately relied on a distinguishable EEOC merits decision which found no discrimination on whistleblower claims of fraud, waste, and abuse. Next, Complainant contended that her cla ims were indeed timely because during the time
of the events at issue, Complainant had reasonably attributed her supervisor’s overburdening her and blaming her to his incompetence as a manager. Counsel for Complainant maintained that it was not until Febr uary 27, 2022, that Complainant reasonably suspected the former supervisor’s
retaliatory motive because a co -worker had filed another EEO complaint alleging retaliation by
the same supervisor while naming Complainant as a key witness. Complainant’s Counse l
reasoned that Complainant’s contact with the EEO Counselor on April 11, 2022, was therefore
timely.
3 2023000437
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination be
brought to the attention of an EEO c ounse lor within forty -five (45) days of the date of the matter
alleged to be discriminatory or, in the case of a personnel action, within forty- five (45) days of
the effective date of the action. The Commission has long adopted a "reasonable suspicion"
standar d to determine when the forty -five (45) day limitation period is triggered. See Howard v.
Department of the Navy , EEOC Request No. 05970852 (February 11, 1999). Thus, the time
limitation is not triggered until a complainant reasonably suspects discrimina tion, but before all
the facts that support a charge of discrimination have become apparent. EEOC Regulation 29
C.F.R. § 1614.107(a)(2) provides for the dismissal of a complaint that fails to comply with the
applicable time limits.
Here, regardless of whether or not the alleged events are considered as independent claims or
together as a claim of harassment, it is undisputed that the last event occurred in 2017 and
Complainant did not first seek EEO counseling until April 2022, nearly five years later and well
beyond the 45- day limitation period. O n appeal , Complainant argues she did not reasonably
suspect an unlawful retaliatory motive for the events of 2016 and 2017 until late February 27,
2022. At that time, Complainant asserts she learned for the first time that a coworker had
identified Complainant as a potential witness in August 2016 in support of the coworker ’s own
EEO complaint . We are unpersuaded by this extremely speculative argument. Complainant
concedes she was never actually contacted by anyone to provide any testimony during the
processing of her cowork er’s complaint.
This Commission has consistently held that a c omplainant mus t pursue claims with due
diligence, or the doctrine of laches may apply. Becker v. U.S. Postal Serv., EEOC Appe al No.
01A45028 (Nov. 18, 2004) (finding that the doctrine of laches applied because a complainant waited more than two years from the date of t he alleged discriminatory events before contacting
an EEO Counselor). In the instant matter, Complainant contac ted an EEO counselor nearly five
years after Complainant’s 45 -day window for making timely EEO c ounselor contact closed.
Therefore, th e doctrine of laches mandates that we must dismiss the entire formal EEO
complaint for untimely EEO Counselor contact in accordance with 29 C.F.R. §§ 1614.105(a)(1) and 1614.107(a)(2). See Casey v. Dep't of Tran sp., EEOC Appeal No. 01A33700 (Sept. 16,
2003) (finding that complainant did not act with due diligence because he initiated the EEO process over four years after t he contested non- selection).
CONCLUSION
Accordingly, the Agency's final decision dismissing the formal complaint is AFFIRMED. Because of our disposition of this case, consideration of alternative dismissal grounds is no t
necessary.
4 2023000437
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0920)
The Commission may, in its discretion, reconsider this appellate decision if Complainant or the
Agency submits a written request that contains arguments or evidence that tend to establish that:
1. The appellate deci sion 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 for reconsideration must be fil ed with EEOC’s Office of Federal Operations (OFO)
within thirty (30) calendar days of receipt of this decision. If the party requesting
reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration . A party shall have twenty
(20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD -110), at Chap. 9 § VII.B
(Aug. 5, 2015).
Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx
Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s reques t to
reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EE OC’s
Federal Sector EEO Portal (F edSEP). See 29 C.F.R. § 1614.403(g). Either party’s request
and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required.
Failure to file within the 30 -d
ay time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the reques t. Any supporting documentation m ust be submitted together with the 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).
5 2023000437
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
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 mus t name as the defendant in the complaint th e 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 “d epartment” 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director Office of Federal Operations
March 23, 2023
Date | [
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229 | https://www.eeoc.gov/sites/default/files/decisions/2021_11_01/2021003260.pdf | 2021003260.pdf | PDF | application/pdf | 11,663 | Mike T .,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. | April 12, 2021 | Appeal Number: 2021003260
Background:
During the period at issue, Complainant wa s an applicant for a Postal Service Employee (PSE)
position at the Agency’s Post Office in Anchorage, Alaska. On November 20, 2020, Complainant initiated EEO c ounselor contact. Informal efforts at
resolution were not successful. On March 13, 2021, Complainant filed a formal EEO complaint. According to the Agency, Complainant claimed that the Agency discriminated against him based on race, age, and in
reprisal for prior protected EEO activity when:
1. on January 2020, Complainant’s hiring status of the PSE Anchorage Plant
position was changed from “Offer Phase” to “Not Selected;” and
2. on May 7, 2020 and September 22, 2020, Complainant was rejected for positions with the Postal Service.
In its final decision dated April 12, 2021, the Agency dismissed the formal complaint on two
proced ural grounds . First, the Agency dismissed claim 1 , pursuant to 29 C.F.R.
§ 1614.107(a)(1), finding that claim 1 was identical to the claim raised in Complainant’s prior EEO complaint, identified under Agency No. 4E -995-0011- 20.
Second, the Agency dismis sed claim 2 , pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely
EEO counselor contact. The Agency determined that Complainant initiated EEO c ounselor
contact on November 20, 2020, which it found was well beyond the limitation period.
The instant appeal followed. On appeal, Complainant argues that the Agency misstated his formal complaint. Specifically, Complainant denies that he is raising the same matters addressed in his prior complaint. Additi onally, Complainant asserts that he received his last notification of
being rejected for a position with the Agency on November 17, 2020, and therefore, he timely contacted and EEO Counselor on November 20, 2020.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty- five
(45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty- five (45) days of the eff ective date of the action.
It is undisputed that Complainant first initiated EEO counselor contact on November 20, 2020,
regarding receiving notifications that he had not met the eligibility and suitability requirements for two positions for which he h ad applied. Complainant asserts that his last notification occurred
on November 17, 2020, and consequently, he timely contacted an EEO Counselor within the 45-day limitation period on November 20, 2020. We note that box 15 on the formal complaint indicate s that the last alleged discriminatory incident occurred on November 17, 2020.
However, our review of the record reflect s that the Agency correctly determined that the Agency
last notified Complainant on September 22, 2020 that he had not met eligibilit y and suitability
requirements. In a statement attached to his formal complaint, Complainant states that “[o]n September 22, 2020 I was rejected again for a[n] Anchorage Postal Support Employee Plant position due to ‘Not Meeting Eligibility Suitability Re quirements.’ ” Complainant explained that
after receiving this rejection , he contacted his US Senator regarding the matter , who submitted an
inquiry on Complainant’s behalf to the Agency. Complainant further explained that his U .S.
Senator emailed him on November 17, 2020, informing him that the Agency responded and
mentioned that Complainant had been previously employed in 2019, but was terminated during
his probationary period on June 18, 2019, for failure to demonstrate unsatisfactory performance.
Contrary to Complainant’s assertion, the 45- day limitation period did not begin when
Complainant received the November 17, 2020 correspondence from his U .S. Senator. Rather, the
limitation period began when Complainant was notified on September 22, 2020, that his
application had been rejected. Here, the September 22, 2020 notification was a personnel action that triggered Complainant’s obligation to seek counseling. Ther efore, Complainant had 45 days
from September 22, 2020, or until November 6, 2020, to timely initiate EEO c ounselor contact.
The record indicates that Complainant did not initiate EEO Counselor contact until November 20, 2020, well beyond the limitation period, and Complainant has not provided adequate
justification to extend the limitatio n period.
The Agency’s final decision dismissing the formal complaint on the grounds of untimely EEO
Counselor contact is AFFIRMED.
3 We acknowledge that Complainant stated on appeal that he did not receive the EEO booklet
from the EEO Counselor regarding the EEO complaint process. However, t he record shows t hat
Complainant had filed a prior EEO complaint in 2019 and, therefore, has at least constructive
knowledge of the relevant time limitations. | Mike T .,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Field Areas and Regions),
Agency.
Appeal No. 2021003260
Agency No. 1E-997-0001-21
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated April 12, 2021, dismissing a formal
complaint alleging unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
During the period at issue, Complainant wa s an applicant for a Postal Service Employee (PSE)
position at the Agency’s Post Office in Anchorage, Alaska. On November 20, 2020, Complainant initiated EEO c ounselor contact. Informal efforts at
resolution were not successful. On March 13, 2021, Complainant filed a formal EEO complaint. According to the Agency, Complainant claimed that the Agency discriminated against him based on race, age, and in
reprisal for prior protected EEO activity when:
1. on January 2020, Complainant’s hiring status of the PSE Anchorage Plant
position was changed from “Offer Phase” to “Not Selected;” and
2. on May 7, 2020 and September 22, 2020, Complainant was rejected for positions with the Postal Service.
In its final decision dated April 12, 2021, the Agency dismissed the formal complaint on two
proced ural grounds . First, the Agency dismissed claim 1 , pursuant to 29 C.F.R.
§ 1614.107(a)(1), finding that claim 1 was identical to the claim raised in Complainant’s prior EEO complaint, identified under Agency No. 4E -995-0011- 20.
Second, the Agency dismis sed claim 2 , pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely
EEO counselor contact. The Agency determined that Complainant initiated EEO c ounselor
contact on November 20, 2020, which it found was well beyond the limitation period.
The instant appeal followed. On appeal, Complainant argues that the Agency misstated his formal complaint. Specifically, Complainant denies that he is raising the same matters addressed in his prior complaint. Additi onally, Complainant asserts that he received his last notification of
being rejected for a position with the Agency on November 17, 2020, and therefore, he timely contacted and EEO Counselor on November 20, 2020.
ANALYSIS AND FINDINGS
Claim 1
Our revie w of the formal complaint, EEO Counselor’s report, and Complainant’s statements on
appeal, indicate that the Agency misstated the subject claim. In a statement attached to his
formal complaint, Complainant alleges that he was retaliated against when he was not selected
for subsequent PSE positions (as identified in claim 2) after he filed a prior EEO complaint ,
identified as 4E -995-0011- 20, which he subsequently withdrew on March 7, 2020.
2 Therefore,
we find that what the Agency characterized as claim 1 was not intended by Complainant to state
a separate claim. Instead, a fair reading of his complaint, shows that Complainant is asserting that after he filed his earlier EEO complaint (4E -995-0011- 20) he was subjected to retaliatory
discrimination by not being selected for the positions identified in claim 2 . As such, his
complaint more accurately only consists of claim 2.
2 In the prior complaint, Complainant alleged in January 2020, his hiring status for the PSE Plant
position with the Agency changed from “Offer Phase” to “Not Selected.”
Untimely EEO Counselor Contact : Claim 2
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty- five
(45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty- five (45) days of the eff ective date of the action.
It is undisputed that Complainant first initiated EEO counselor contact on November 20, 2020,
regarding receiving notifications that he had not met the eligibility and suitability requirements for two positions for which he h ad applied. Complainant asserts that his last notification occurred
on November 17, 2020, and consequently, he timely contacted an EEO Counselor within the 45-day limitation period on November 20, 2020. We note that box 15 on the formal complaint indicate s that the last alleged discriminatory incident occurred on November 17, 2020.
However, our review of the record reflect s that the Agency correctly determined that the Agency
last notified Complainant on September 22, 2020 that he had not met eligibilit y and suitability
requirements. In a statement attached to his formal complaint, Complainant states that “[o]n September 22, 2020 I was rejected again for a[n] Anchorage Postal Support Employee Plant position due to ‘Not Meeting Eligibility Suitability Re quirements.’ ” Complainant explained that
after receiving this rejection , he contacted his US Senator regarding the matter , who submitted an
inquiry on Complainant’s behalf to the Agency. Complainant further explained that his U .S.
Senator emailed him on November 17, 2020, informing him that the Agency responded and
mentioned that Complainant had been previously employed in 2019, but was terminated during
his probationary period on June 18, 2019, for failure to demonstrate unsatisfactory performance.
Contrary to Complainant’s assertion, the 45- day limitation period did not begin when
Complainant received the November 17, 2020 correspondence from his U .S. Senator. Rather, the
limitation period began when Complainant was notified on September 22, 2020, that his
application had been rejected. Here, the September 22, 2020 notification was a personnel action that triggered Complainant’s obligation to seek counseling. Ther efore, Complainant had 45 days
from September 22, 2020, or until November 6, 2020, to timely initiate EEO c ounselor contact.
The record indicates that Complainant did not initiate EEO Counselor contact until November 20, 2020, well beyond the limitation period, and Complainant has not provided adequate
justification to extend the limitatio n period.
The Agency’s final decision dismissing the formal complaint on the grounds of untimely EEO
Counselor contact is AFFIRMED.
3 We acknowledge that Complainant stated on appeal that he did not receive the EEO booklet
from the EEO Counselor regarding the EEO complaint process. However, t he record shows t hat
Complainant had filed a prior EEO complaint in 2019 and, therefore, has at least constructive
knowledge of the relevant time limitations.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0920)
The Commission may, in its discretion, reconsider this appel late decision if Complainant or the
Agency submits a written request that contains arguments or evidence that tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or
law; or
2. The appellate dec ision will have a substantial impact on the policies, practices, or
operations of the agency.
Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO)
within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration . A party shall have twenty
(20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD -110), at Chap. 9 § VII.B
(Aug. 5, 2015).
Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx
Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addresse d to 131 M Street, NE,
Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request
and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required.
Failure to file within the 30 -day time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for
reconsideration. The Commission will consider requests for reconsidera tion 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 (S0610)
You have the right to file a civil action in an appropriate United States District Court within
ninety (90) c alendar 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 offic ial 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for wa iver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the p aragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
August 25, 2021
Date | [
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"29 C.F.R. § 1614.604",
"29 C.F.R. § 1614.403(g)",
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230 | https://www.eeoc.gov/sites/default/files/decisions/2022_04_20/2022001201.pdf | 2022001201.pdf | PDF | application/pdf | 11,484 | Stan G .,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. | December 22, 2021 | Appeal Number: 2022001201
Background:
During the period at issue, Complainant worked for the Agency as a Supervisor, Customer
Service in Silver Spring, Maryland.2
On August 27, 2021, Complainant initiated EEO Counselor contact. Informal efforts at resolution were not successful . On November 23, 2021, Complainant filed a formal complaint
alleging that the Agency subjected him to discrimination on the bases of age and reprisal for prior protected EEO activity when :
1. On June 25, 2021, Complainant’s request for Emergency Federal Employees
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non- parties and the Commission’s website.
2 The record reflects that Complainant retired from Agency employment effective November 31 ,
2021.
Leave (EFEL) was denied; and
2. On July 19, 2021, the National Association for Postal Supervisors (NAPS) was
unable to resolve his case.
The Agency dismissed claim (1) for untimely EEO c ounselor contact reasoning that Complainant
initiated EEO contact outside of the applicable time period. The Agency further found that
Complainant abandoned claim (2) because Complainant raised this matter during EEO
counseling but did not raise it in his formal complaint.
The instant appeal followed. On appeal, Complainant asserts that on June 25, 2021, he called his NAPS representative to file a grievance on this matter. Complainant asserts that on July 29,
2021, he spoke to his NAPS representat ive and she informed him that management would not
come to an agreement. Complainant asserts that he subsequently initiated EEO contact. Complainant asserts that his EEO contact was not untimely because he was pursuing a grievance. Specifically, Complai nant states that, “I was told that [I could not] file a grievance and an EEO
at the same time, so I was waiting for my grievance t hat was being handled by NAPS
representative to be completed.” Complainant further asserts that he was issued a Notice of Right to File a Formal Complaint (Notice) on November 22, 2021, and that he should not have
been issued the Notice , if he did not mee t the EEO time requirements. | Stan G .,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Field Areas and Regions),
Agency.
Appeal No. 2022001201
Agency No. 4B-200-0129-21
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated December 22, 2021, dismissing a formal
compl aint 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.
BACKGROUND
During the period at issue, Complainant worked for the Agency as a Supervisor, Customer
Service in Silver Spring, Maryland.2
On August 27, 2021, Complainant initiated EEO Counselor contact. Informal efforts at resolution were not successful . On November 23, 2021, Complainant filed a formal complaint
alleging that the Agency subjected him to discrimination on the bases of age and reprisal for prior protected EEO activity when :
1. On June 25, 2021, Complainant’s request for Emergency Federal Employees
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non- parties and the Commission’s website.
2 The record reflects that Complainant retired from Agency employment effective November 31 ,
2021.
Leave (EFEL) was denied; and
2. On July 19, 2021, the National Association for Postal Supervisors (NAPS) was
unable to resolve his case.
The Agency dismissed claim (1) for untimely EEO c ounselor contact reasoning that Complainant
initiated EEO contact outside of the applicable time period. The Agency further found that
Complainant abandoned claim (2) because Complainant raised this matter during EEO
counseling but did not raise it in his formal complaint.
The instant appeal followed. On appeal, Complainant asserts that on June 25, 2021, he called his NAPS representative to file a grievance on this matter. Complainant asserts that on July 29,
2021, he spoke to his NAPS representat ive and she informed him that management would not
come to an agreement. Complainant asserts that he subsequently initiated EEO contact. Complainant asserts that his EEO contact was not untimely because he was pursuing a grievance. Specifically, Complai nant states that, “I was told that [I could not] file a grievance and an EEO
at the same time, so I was waiting for my grievance t hat was being handled by NAPS
representative to be completed.” Complainant further asserts that he was issued a Notice of Right to File a Formal Complaint (Notice) on November 22, 2021, and that he should not have
been issued the Notice , if he did not mee t the EEO time requirements.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should
be brought to the attention of the Equal Employment Opportunity Counselor within forty -five
(45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel
action, within forty -five (45) days of the effective date of the action.
EEOC regulations provide that the agency or the Commission shall extend the time limits when
the individual shows that he was not notified of the time limits and was no t otherwise aware of
them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
We find that the Agency properly dismissed claim (1) for untimely EEO Counselor contact. The record reflects that the alleged discriminatory incident (de nial of EFEL) occurred on June 25,
2021. However, Complainant did not initiate EEO contact until August 27, 2021, outside of the
applicable time period. Complainan t has not presented sufficient justification for extending the
time limit. While Complainant asserts that the Agency should not have dismissed his for mal
complaint because he was issued the Notice. W e disagree. Commission regulations provide that
an Agency may dismiss a formal complaint on various procedural dismissal grounds prior to a
request for a hearing. See 29 C.F.R. § 1614.107(a).
While Compla inant, on appeal, asserts that he was pursuing a grievance prior to initiating an
EEO complaint, the Commission has consistently held that utilization of internal agency
procedures, union grievances, and other remedial processes does not toll the time limi t for
contacting an EEO Counselor. See Kramer v. U.S. Postal Service , EEOC Appeal No. 01954021
(October 5, 1995) ; Williams v. U.S. Postal Service , EEOC Request No. 05910291 (April 25,
1991) .
To the extent that Complainant asserts, on appeal, that he was informed that he could not file an
EEO complaint until the grievance process concluded , we find that this is insufficient to waive
the applicable time period. Complainant does not specifically assert that an Agency /EEO official
told him he could not initi ate an EEO complaint until he completed the grievance process. If a
co-worker or union official provided him with this misinformation, this would be insufficient to
extend the applicable time limit. See Smith v. Dep’t of Veteran Affairs , EEOC Appeal No.
01A01182 (Oct. 11, 2000) ( misinformation from a union official regarding EEO time
requirements is not sufficient to extend the applicable time limit). Furthermore, Complainant has
not provided evidence that Agency/EEO officials misled hi m into waiting to i nitiate EEO
Counseling. In addition, the record contains an affidavit from an Agency official that posters
were on display at Complainant’s facility which set forth the 45 -day time limit. Thus,
Complainant had constructive notice of the applicable time limit. Based on the foregoing, we find that Complainant has not presented sufficient justification to extend the applicable time limit.
We find that the Agency properly dismissed claim (2). While Complainant raised this matter
during EEO counseling, he did not raise it in his formal complaint. Thus, we concur with the
Agency that this matter has been abandoned . See Small v. U.S. Postal Serv., EEOC Request No.
05980289 (July 16, 1999). In addition, to the extent that Complainant is a lleging that NAPS, a
management association, did not resolve this matter in the grievance process, this matter would
be outside the Commission’s jurisdiction.
We AFFIRM the Agency’s final decision dismissing Complainant’s complaint for the reasons
discussed above.
STATEM ENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0920)
The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidenc e that tend to establish that:
1. The app ellate 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 for reconsideration must be filed with EEO C’s Office of Federal Operations (OFO)
within thirty (30) calendar days of receipt of this decision.
If the party requesting reconsideration elects to file a statement or brief in support of the request,
that sta tement or brief must be filed together with the request for reconsideration . A party
shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal
Employment Opportunity M anagement Directive for 29 C.F.R. Part 1614 (EEO MD -110), at
Chap. 9 § VII.B (Aug. 5, 2015).
Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx
Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addresse d to 131 M Street, NE,
Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the
expiration of the applicable filing period. See 29 C. F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EE O Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request
and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of
service is required.
Failure to file within the 30 -day time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for
reconsideration. The Commission will consider requests for reconsidera tion 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 (S0610)
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 c omplaint 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 or ganization, 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 COUNS EL (Z0815)
If you wa nt to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney t o represent you in t he civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
March 8, 2022
Date | [
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231 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a44247.txt | 01a44247.txt | TXT | text/plain | 13,319 | 01A44247 September 21, 2005 . John Mueller, Complainant, v. Michael L. Dominguez, Acting Secretary, Department of the Air Force, (National Guard Bureau), Agency. | September 21, 2005 | Appeal Number: 01A44247
Legal Analysis:
the Commission from the agency's May 2, 2004
decision dismissing his complaint based on national origin (Hispanic)
and retaliation. The agency dismissed the portion of complainant's
complaint concerning his separation from civilian employment for
untimely EEO Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2),
for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1),
and for failure to cooperate pursuant to 29 C.F.R. § 1614.107(a)(7).
According to the decision, complainant raised 11 additional claims that
should be dismissed for failure to state a claim because they all involve
military issues outside the EEOC's jurisdiction. The agency attached
to the decision, a list of what it describes as complainant's 11 claims.
The Commission finds that the 11 additional claims appear to be
background information. To the extent that the 11 additional claims are
not background information, we find that the claim that complainant was
subjected to a drug test in September 2003, is properly dismissed for
untimely EEO Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2).
Complainant did not contact an EEO Counselor until, at the earliest,
December 31, 2003, which is beyond the 45-day time limit for contacting
an EEO Counselor. The other 10 additional claims, which appear to be
background information, simply elaborate on complainant's termination
claim and do not identify any harm apart from his termination (also
referred to as complainant's non-retention). Therefore, to the extent
that the other 10 claims were intended by complainant to be considered
as claims, we find that these claims are properly dismissed pursuant to
29 C.F.R. § 1614.107(a)(1).
The remainder of this decision shall concern complainant's claim that
he was separated from civilian federal employment.
Untimely EEO Counselor Contact
The agency found that complainant was separated from the agency
on December 13, 2003. The agency dismissed complainant's complaint
finding that his February 18, 2004<1> EEO Counselor contact was beyond
the 45-day limitation period. Complainant argues that he contacted the
designated EEO Counselor on December 31, 2003, via electronic mail.
The record contains an electronic message dated December 31, 2003,
from complainant to a number of people including the EEO Counselor that
signed the EEO Counselor's Report. Although the EEO Counselor states
in the EEO Counselor's Report that he did not receive the December 31,
2003 electronic mail message from complainant, complainant has produced
the message on appeal and we find, under the circumstances, the copy
of the message is sufficient evidence to show complainant contacted an
EEO Counselor on December 31, 2003. Thus, we find complainant initiated
EEO Counselor contact with the intention of pursuing the EEO process on
December 31, 2003, which is within the 45-day limitation period.
Failure to State a Claim
The agency dismissed complainant's complaint for failure to state a
claim finding that complainant was not a federal employee. Specifically,
the agency found that complainant was in a quasi-military position over
which the Commission has no jurisdiction. Nevertheless, the Commission
has recognized the dual status of Federal technicians in the reserves,
noting that those individuals are considered both uniformed military
personnel, as well as civilian employees. See Gordon v. Department of the
Air Force, EEOC Appeal No. 01953368 (February 13, 1996) (citing Brazil
v. National Guard Bureau, EEOC Appeal No. 01891698 (June 22, 1998)).
The Commission has held that Federal technicians are covered by Title VII
only when the alleged discriminatory action arises from their capacity as
civilian employees, and not when personnel decisions affect their capacity
as uniformed military personnel. Thus, with regard to complainant's
non-retention claim, although the Commission cannot review the substance
of the agency's decision to discharge complainant from a military
position, we are not precluded from determining whether complainant's
termination from the civilian position was based on discrimination.
Complainant claims that his employment falls in this dual status and that
his civilian employment was terminated. The agency has not produced
evidence rebutting this claim. Thus, based on the record before us,
we find that complainant has stated a justifiable EEO claim, and remand
the matter for further processing.
Failure to Cooperate
The agency dismissed complainant's complaint for failure to cooperate
finding that complainant failed to respond to a request for clarification.
The agency argues that a written request was sent via facsimile to
complainant on April 12, 2004, and mailed certified mail-return receipt
requested, yet no reply was received. Complainant's attorney argues that
the request was received and a telephone call was placed to the head of
the agency's EEO office (Ms. X). Complainant's attorney contends that
she had a conversation with the head of the EEO office in which she asked
Ms. X whether she has seen the Equal Rights Division (ERD) complaint.<2>
Ms. X indicated that she had not seen the ERD complaint and, according
to complainant's attorney, agreed to obtain the complaint and agreed
to contact complainant's attorney if any other information was needed.
The agency then issued the instant decision. The agency, however,
has not shown that the information was needed in order to process
complainant's complaint. We find the agency improperly dismissed
complainant's complaint for failure to cooperate.
The portion of the agency's decision dismissing the termination from
civilian employment claim is REVERSED and we REMAND the termination claim
to the agency for further processing in accordance with this decision and
applicable regulations. The portion of the agency's decision dismissing
the remainder of the complaint is AFFIRMED.
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. | John Mueller v. Department of the Air Force (National Guard Bureau)
01A44247
September 21, 2005
.
John Mueller,
Complainant,
v.
Michael L. Dominguez,
Acting Secretary,
Department of the Air Force,
(National Guard Bureau),
Agency.
Appeal No. 01A44247
Agency No. T-0164-WI-F-01-04-RNO
DECISION
Complainant appeals to the Commission from the agency's May 2, 2004
decision dismissing his complaint based on national origin (Hispanic)
and retaliation. The agency dismissed the portion of complainant's
complaint concerning his separation from civilian employment for
untimely EEO Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2),
for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1),
and for failure to cooperate pursuant to 29 C.F.R. § 1614.107(a)(7).
According to the decision, complainant raised 11 additional claims that
should be dismissed for failure to state a claim because they all involve
military issues outside the EEOC's jurisdiction. The agency attached
to the decision, a list of what it describes as complainant's 11 claims.
The Commission finds that the 11 additional claims appear to be
background information. To the extent that the 11 additional claims are
not background information, we find that the claim that complainant was
subjected to a drug test in September 2003, is properly dismissed for
untimely EEO Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2).
Complainant did not contact an EEO Counselor until, at the earliest,
December 31, 2003, which is beyond the 45-day time limit for contacting
an EEO Counselor. The other 10 additional claims, which appear to be
background information, simply elaborate on complainant's termination
claim and do not identify any harm apart from his termination (also
referred to as complainant's non-retention). Therefore, to the extent
that the other 10 claims were intended by complainant to be considered
as claims, we find that these claims are properly dismissed pursuant to
29 C.F.R. § 1614.107(a)(1).
The remainder of this decision shall concern complainant's claim that
he was separated from civilian federal employment.
Untimely EEO Counselor Contact
The agency found that complainant was separated from the agency
on December 13, 2003. The agency dismissed complainant's complaint
finding that his February 18, 2004<1> EEO Counselor contact was beyond
the 45-day limitation period. Complainant argues that he contacted the
designated EEO Counselor on December 31, 2003, via electronic mail.
The record contains an electronic message dated December 31, 2003,
from complainant to a number of people including the EEO Counselor that
signed the EEO Counselor's Report. Although the EEO Counselor states
in the EEO Counselor's Report that he did not receive the December 31,
2003 electronic mail message from complainant, complainant has produced
the message on appeal and we find, under the circumstances, the copy
of the message is sufficient evidence to show complainant contacted an
EEO Counselor on December 31, 2003. Thus, we find complainant initiated
EEO Counselor contact with the intention of pursuing the EEO process on
December 31, 2003, which is within the 45-day limitation period.
Failure to State a Claim
The agency dismissed complainant's complaint for failure to state a
claim finding that complainant was not a federal employee. Specifically,
the agency found that complainant was in a quasi-military position over
which the Commission has no jurisdiction. Nevertheless, the Commission
has recognized the dual status of Federal technicians in the reserves,
noting that those individuals are considered both uniformed military
personnel, as well as civilian employees. See Gordon v. Department of the
Air Force, EEOC Appeal No. 01953368 (February 13, 1996) (citing Brazil
v. National Guard Bureau, EEOC Appeal No. 01891698 (June 22, 1998)).
The Commission has held that Federal technicians are covered by Title VII
only when the alleged discriminatory action arises from their capacity as
civilian employees, and not when personnel decisions affect their capacity
as uniformed military personnel. Thus, with regard to complainant's
non-retention claim, although the Commission cannot review the substance
of the agency's decision to discharge complainant from a military
position, we are not precluded from determining whether complainant's
termination from the civilian position was based on discrimination.
Complainant claims that his employment falls in this dual status and that
his civilian employment was terminated. The agency has not produced
evidence rebutting this claim. Thus, based on the record before us,
we find that complainant has stated a justifiable EEO claim, and remand
the matter for further processing.
Failure to Cooperate
The agency dismissed complainant's complaint for failure to cooperate
finding that complainant failed to respond to a request for clarification.
The agency argues that a written request was sent via facsimile to
complainant on April 12, 2004, and mailed certified mail-return receipt
requested, yet no reply was received. Complainant's attorney argues that
the request was received and a telephone call was placed to the head of
the agency's EEO office (Ms. X). Complainant's attorney contends that
she had a conversation with the head of the EEO office in which she asked
Ms. X whether she has seen the Equal Rights Division (ERD) complaint.<2>
Ms. X indicated that she had not seen the ERD complaint and, according
to complainant's attorney, agreed to obtain the complaint and agreed
to contact complainant's attorney if any other information was needed.
The agency then issued the instant decision. The agency, however,
has not shown that the information was needed in order to process
complainant's complaint. We find the agency improperly dismissed
complainant's complaint for failure to cooperate.
The portion of the agency's decision dismissing the termination from
civilian employment claim is REVERSED and we REMAND the termination claim
to the agency for further processing in accordance with this decision and
applicable regulations. The portion of the agency's decision dismissing
the remainder of the complaint is AFFIRMED.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
September 21, 2005
__________________
Date
1The agency, in its decision, indicates
complainant initiated EEO Counselor contact on February 18, 2004.
However, the EEO Counselor's Report indicates that complainant initiated
EEO Counselor contact on February 16, 2004. The agency does not reconcile
the inconsistency. The inconsistency, however, does not change the
outcome of this decision.
2The record indicates that information was being shared with the ERD
office and the EEO office, as well as legal counsel in an attempt to
determine jurisdiction.
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232 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/03A20036.txt | 03A20036.txt | TXT | text/plain | 10,616 | April 11, 2002 | Appeal Number: 01983020
Background:
Petitioner, a Personnel Management Specialist at the United States Coast
Guard facility in Alameda, California, was removed from her position
on August 9, 2000. On August 15, 2000, petitioner filed a mixed case
appeal with the MSPB, alleging that she had been discriminated against in
this removal action on the basis of disclosures she had made which were
protected under the Whistleblowers Protection Act, 5 U.S.C. § 2302(b)(8),
as well as on the bases of her sex and age (forty-nine years old at the
time of the removal), and in retaliation for her prior EEO activity.
After a hearing, a MSPB Administrative Judge (AJ) found that petitioner
had proven that she had been retaliated against for her whistleblower
activities, and reversed the removal and ordered the agency to restore
petitioner to her prior position. The AJ also found, however, that
petitioner had not proven that the agency had been unlawfully motivated
by her sex or age in its removal action, or that the removal was in
retaliation for her prior EEO activity. Subsequently, the MSPB denied
petitioner's petition for review of the AJ's decision. Petitioner then
sought Commission review of the MSPB's decision.
In her petition to the Commission, petitioner does not challenge the
AJ's decision regarding her sex and age discrimination claims. She does
challenge the AJ's decision on her claim that she was retaliated against
based upon her prior EEO activity, arguing that the evidentiary record
establishes that the removal was the product of retaliation against
petitioner for her prior EEO activity, and that the AJ erred in denying
petitioner's request to present certain witnesses pertaining to her EEO
retaliation claim. The agency disagrees with petitioner's interpretation
of the record evidence, and argues that the AJ correctly determined that
the witnesses at issue would not have been able to assist petitioner in
establishing her EEO retaliation claim, and therefore that the exclusion
of their testimony was proper.
Legal Analysis:
EEOC Regulations provide that the Commission has jurisdiction over
mixed case appeals on which the MSPB has issued a decision that makes
determinations on allegations of discrimination. 29 C.F.R. § 1614.303
et seq. For the reasons stated below, the Commission concurs with the
MSPB's final decision finding no retaliation on the basis of petitioner's
prior protected equal employment opportunity (EEO) activity.
BACKGROUND
Petitioner, a Personnel Management Specialist at the United States Coast
Guard facility in Alameda, California, was removed from her position
on August 9, 2000. On August 15, 2000, petitioner filed a mixed case
appeal with the MSPB, alleging that she had been discriminated against in
this removal action on the basis of disclosures she had made which were
protected under the Whistleblowers Protection Act, 5 U.S.C. § 2302(b)(8),
as well as on the bases of her sex and age (forty-nine years old at the
time of the removal), and in retaliation for her prior EEO activity.
After a hearing, a MSPB Administrative Judge (AJ) found that petitioner
had proven that she had been retaliated against for her whistleblower
activities, and reversed the removal and ordered the agency to restore
petitioner to her prior position. The AJ also found, however, that
petitioner had not proven that the agency had been unlawfully motivated
by her sex or age in its removal action, or that the removal was in
retaliation for her prior EEO activity. Subsequently, the MSPB denied
petitioner's petition for review of the AJ's decision. Petitioner then
sought Commission review of the MSPB's decision.
In her petition to the Commission, petitioner does not challenge the
AJ's decision regarding her sex and age discrimination claims. She does
challenge the AJ's decision on her claim that she was retaliated against
based upon her prior EEO activity, arguing that the evidentiary record
establishes that the removal was the product of retaliation against
petitioner for her prior EEO activity, and that the AJ erred in denying
petitioner's request to present certain witnesses pertaining to her EEO
retaliation claim. The agency disagrees with petitioner's interpretation
of the record evidence, and argues that the AJ correctly determined that
the witnesses at issue would not have been able to assist petitioner in
establishing her EEO retaliation claim, and therefore that the exclusion
of their testimony was proper.
ANALYSIS AND FINDINGS
As an initial matter, we note that in addressing a petition for review
of a final MSPB decision on a mixed case appeal, the Commission must
determine whether the MSPB's decision with respect to the allegation of
retaliation for prior EEO activity constitutes an incorrect interpretation
of any applicable law, rule, regulation, or policy directive, or is
not supported by the evidence in the record as a whole. 29 C.F.R. §
1614.305(c).
In cases such as this, where there is an absence of direct evidence of
retaliation for participation in the EEO process, the allocation of
burdens and order of presentation of proof is a three-step process.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973);
see also Hochstadt v. Worcester Found. for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass. 1976) (extending McDonnell Douglas
analysis to retaliation claims), aff'd, 545 F.2d 222 (1st Cir. 1976).
First, petitioner must establish a prima facie case of discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination; i.e., that a prohibited consideration was
a factor in the adverse employment action. Kimble v. Department of
the Navy, EEOC Appeal No. 01983020 (Aug. 22, 2001). Next, the agency
must articulate a legitimate, nondiscriminatory reason for its actions.
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
If the agency is successful in meeting this burden, then petitioner must
prove, by a preponderance of the evidence, that the legitimate reason
proffered by the agency was a pretext for discrimination. Id. at 256.
However, the ultimate burden of persuading the trier of fact that the
agency intentionally discriminated against petitioner remains at all
times with petitioner. Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 143 (2000).
In order to establish a prima facie case of retaliation for prior EEO
activity, petitioner must show that she engaged in a protected activity;
the agency was aware of the protected activity; subsequently, she was
subjected to adverse treatment by the agency; and a nexus exists between
the protected activity and the adverse treatment. Silva v. National
Credit Union Admin., EEOC Petition No. 03A10087 (Mar. 7, 2002).
The Commission has defined this nexus component of the prima facie case
as requiring a showing that the adverse treatment followed the protected
activity within such a period of time that retaliatory motivation may
be inferred. Packard v. Department of Health & Human Serv., EEOC Appeal
Nos. 01985494, 01985495 (Mar. 22, 2001); see also Smithson v. Social
Security Admin., EEOC Appeal No. 01A03598 (Aug. 23, 2001).
The AJ found that complainant was unable to establish a prima facie
case of retaliation for her prior EEO activity because she had not
shown that a genuine nexus exists between the removal actions and
the protected activity. The evidentiary record shows that complainant
did have a history of EEO activity, including EEO activity against some
of the agency officials involved in the removal at issue, and that she
was also involved in ongoing EEO activity at the time of her removal.
Because it has been established that petitioner's previous and ongoing EEO
activity was known to agency officials responsible for her removal, we
disagree with the AJ's finding that petitioner failed to establish a nexus
between her protected EEO activity and her removal sufficient to support
her prima facie case. | Christine R. Reese v. United States Coast Guard
03A20036
April 11, 2002
.
Christine R. Reese,
Petitioner,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Petition No. 03A20036
MSPB No. SF-0752-00-0610-I-1
DECISION
INTRODUCTION
On February 11, 2002, petitioner filed a timely petition with the Equal
Employment Opportunity Commission (Commission) seeking review of a Final
Order issued by the Merit Systems Protection Board (MSPB) concerning
her claim of discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
EEOC Regulations provide that the Commission has jurisdiction over
mixed case appeals on which the MSPB has issued a decision that makes
determinations on allegations of discrimination. 29 C.F.R. § 1614.303
et seq. For the reasons stated below, the Commission concurs with the
MSPB's final decision finding no retaliation on the basis of petitioner's
prior protected equal employment opportunity (EEO) activity.
BACKGROUND
Petitioner, a Personnel Management Specialist at the United States Coast
Guard facility in Alameda, California, was removed from her position
on August 9, 2000. On August 15, 2000, petitioner filed a mixed case
appeal with the MSPB, alleging that she had been discriminated against in
this removal action on the basis of disclosures she had made which were
protected under the Whistleblowers Protection Act, 5 U.S.C. § 2302(b)(8),
as well as on the bases of her sex and age (forty-nine years old at the
time of the removal), and in retaliation for her prior EEO activity.
After a hearing, a MSPB Administrative Judge (AJ) found that petitioner
had proven that she had been retaliated against for her whistleblower
activities, and reversed the removal and ordered the agency to restore
petitioner to her prior position. The AJ also found, however, that
petitioner had not proven that the agency had been unlawfully motivated
by her sex or age in its removal action, or that the removal was in
retaliation for her prior EEO activity. Subsequently, the MSPB denied
petitioner's petition for review of the AJ's decision. Petitioner then
sought Commission review of the MSPB's decision.
In her petition to the Commission, petitioner does not challenge the
AJ's decision regarding her sex and age discrimination claims. She does
challenge the AJ's decision on her claim that she was retaliated against
based upon her prior EEO activity, arguing that the evidentiary record
establishes that the removal was the product of retaliation against
petitioner for her prior EEO activity, and that the AJ erred in denying
petitioner's request to present certain witnesses pertaining to her EEO
retaliation claim. The agency disagrees with petitioner's interpretation
of the record evidence, and argues that the AJ correctly determined that
the witnesses at issue would not have been able to assist petitioner in
establishing her EEO retaliation claim, and therefore that the exclusion
of their testimony was proper.
ANALYSIS AND FINDINGS
As an initial matter, we note that in addressing a petition for review
of a final MSPB decision on a mixed case appeal, the Commission must
determine whether the MSPB's decision with respect to the allegation of
retaliation for prior EEO activity constitutes an incorrect interpretation
of any applicable law, rule, regulation, or policy directive, or is
not supported by the evidence in the record as a whole. 29 C.F.R. §
1614.305(c).
In cases such as this, where there is an absence of direct evidence of
retaliation for participation in the EEO process, the allocation of
burdens and order of presentation of proof is a three-step process.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973);
see also Hochstadt v. Worcester Found. for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass. 1976) (extending McDonnell Douglas
analysis to retaliation claims), aff'd, 545 F.2d 222 (1st Cir. 1976).
First, petitioner must establish a prima facie case of discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination; i.e., that a prohibited consideration was
a factor in the adverse employment action. Kimble v. Department of
the Navy, EEOC Appeal No. 01983020 (Aug. 22, 2001). Next, the agency
must articulate a legitimate, nondiscriminatory reason for its actions.
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
If the agency is successful in meeting this burden, then petitioner must
prove, by a preponderance of the evidence, that the legitimate reason
proffered by the agency was a pretext for discrimination. Id. at 256.
However, the ultimate burden of persuading the trier of fact that the
agency intentionally discriminated against petitioner remains at all
times with petitioner. Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 143 (2000).
In order to establish a prima facie case of retaliation for prior EEO
activity, petitioner must show that she engaged in a protected activity;
the agency was aware of the protected activity; subsequently, she was
subjected to adverse treatment by the agency; and a nexus exists between
the protected activity and the adverse treatment. Silva v. National
Credit Union Admin., EEOC Petition No. 03A10087 (Mar. 7, 2002).
The Commission has defined this nexus component of the prima facie case
as requiring a showing that the adverse treatment followed the protected
activity within such a period of time that retaliatory motivation may
be inferred. Packard v. Department of Health & Human Serv., EEOC Appeal
Nos. 01985494, 01985495 (Mar. 22, 2001); see also Smithson v. Social
Security Admin., EEOC Appeal No. 01A03598 (Aug. 23, 2001).
The AJ found that complainant was unable to establish a prima facie
case of retaliation for her prior EEO activity because she had not
shown that a genuine nexus exists between the removal actions and
the protected activity. The evidentiary record shows that complainant
did have a history of EEO activity, including EEO activity against some
of the agency officials involved in the removal at issue, and that she
was also involved in ongoing EEO activity at the time of her removal.
Because it has been established that petitioner's previous and ongoing EEO
activity was known to agency officials responsible for her removal, we
disagree with the AJ's finding that petitioner failed to establish a nexus
between her protected EEO activity and her removal sufficient to support
her prima facie case. Accordingly, we find that petitioner established
a prima facie case of retaliation for her prior EEO activity. We agree
with the AJ, however, that despite this prima facie showing, petitioner
has not met her ultimate burden of establishing by a preponderance of the
evidence that the agency's removal action was motivated by an unlawful
animus toward her participation in the EEO process. See Reeves, 530
U.S. at 143. Therefore, we conclude that the AJ properly found that
petitioner had not proven that the removal was the result of agency
retaliation for her EEO activity.
As for petitioner's argument that the AJ improperly precluded three of
her witnesses from testifying at the hearing, we note that the MSPB has
recognized that AJs generally have wide discretion in the conduct of
administrative hearings to exclude witnesses where it has not been shown
that their testimony would be relevant, material, and nonrepetitious.
Skellham v. United States Postal Serv., 90 M.S.P.R. 361, 367 (2001)
(citing Franco v. United States Postal Serv., 27 M.S.P.R. 322, 325
(1985)). The AJ precluded the proposed witnesses because petitioner's
description of their testimony revealed that their testimony would
be vague, cumulative, and of slight relevance to the matter at issue.
Petitioner argues that the witnesses at issue had probative evidence
to offer regarding the EEO retaliation claim. In our view, however,
petitioner has not established that the proposed testimony would not be
repetitious or irrelevant to the ultimate issue of whether complainant's
removal was the result of retaliation for her prior EEO activity.
We therefore find the AJ acted within his discretion.
Therefore, based upon a thorough review of the record and for the
foregoing reasons, it is the decision of the Commission to concur with
the final decision of the MSPB finding no retaliation for petitioner's
prior EEO activity. The Commission finds that the MSPB's decision
constitutes a correct interpretation of the laws, rules, regulations,
and policies governing this matter and is supported by the evidence in
the record as a whole.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, within
thirty (30) calendar days of 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.
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
April 11, 2002
Date
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233 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0520120116.txt | 0520120116.txt | TXT | text/plain | 11,479 | Tenika King, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency. | October 7, 2011 | Appeal Number: 0120112566
Background:
In the underlying case, Complainant alleged that the Agency subjected her to discrimination on the basis of disability when: (1) on November 4, 2009, she was transferred from the first floor to the second floor; (2) on November 4, 2009, she was denied a reasonable accommodation; and (3) on November 5, 2009, she was forced to resign.
On October 22, 2010, Complainant filed a motion with an EEOC Administrative Judge (AJ) to amend a pending EEO complaint (Agency No. 2003-0323-2010100471, EEOC Hearing No. 420-2010-00179X) to include the above new claims, which she believed were like or related to those raised in a pending complaint.
On October 25, 2010, the AJ issued an order denying Complainant's motion to amend. Specifically, the AJ found that the new claims were not like or related to the claims raised in the pending complaint. In addition, the AJ stated that, if timely, the Agency should investigate the new claims as separate allegations of discrimination.
On November 2, 2010, Complainant contacted an EEO Counselor regarding the new claims. In her letter to the EEO Counselor, Complainant referenced her October 22, 2010 motion to amend and included a copy of the AJ's October 25, 2010 order denying her motion to amend. On February 17, 2011, Complainant filed an EEO complaint involving the new claims.
The Agency issued a final decision dismissing Complainant's complaint pursuant to
29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact.1 The Agency specifically noted that the AJ had denied Complainant's October 22, 2010 motion to amend. The Agency, construing Complainant's motion to amend as the date of her initial EEO Counselor contact, found that the October 22, 2010 EEO Counselor contact occurred more than 45 days after the November 2009 matters alleged to be discriminatory.
The previous decision reversed the Agency's final decision dismissing Complainant's complainant, finding that the Agency failed to meet its burden of obtaining sufficient information to support a reasoned determination as to timeliness. Specifically, the previous decision stated, "[W]e are unable to determine from the evidence in the record before us if Complainant's EEO contact was timely ... The Agency did not identify the date on which these claims were brought to the AJ's attention."
ARGUMENTS ON RECONSIDERATION
On request for reconsideration, the Agency contended that the previous decision involved a clearly erroneous interpretation of material fact. The Agency argued that, contrary to the previous decision's statement, the record clearly indicates that Complainant brought the November 2009 claims to the AJ's attention in her October 22, 2010 motion to amend. Therefore, argued the Agency, Complainant's October 22, 2010 EEO Counselor contact was untimely with respect to her November 2009 claims.
Complainant did not respond to the Agency's request for reconsideration.
Legal Analysis:
EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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.
See 29 C.F.R. § 1614.405(b).
ISSUE PRESENTED
The issue presented is whether the previous decision clearly erred in finding that the Agency failed to meet its burden to prove that Complainant's EEO Counselor contact was untimely.
BACKGROUND
In the underlying case, Complainant alleged that the Agency subjected her to discrimination on the basis of disability when: (1) on November 4, 2009, she was transferred from the first floor to the second floor; (2) on November 4, 2009, she was denied a reasonable accommodation; and (3) on November 5, 2009, she was forced to resign.
On October 22, 2010, Complainant filed a motion with an EEOC Administrative Judge (AJ) to amend a pending EEO complaint (Agency No. 2003-0323-2010100471, EEOC Hearing No. 420-2010-00179X) to include the above new claims, which she believed were like or related to those raised in a pending complaint.
On October 25, 2010, the AJ issued an order denying Complainant's motion to amend. Specifically, the AJ found that the new claims were not like or related to the claims raised in the pending complaint. In addition, the AJ stated that, if timely, the Agency should investigate the new claims as separate allegations of discrimination.
On November 2, 2010, Complainant contacted an EEO Counselor regarding the new claims. In her letter to the EEO Counselor, Complainant referenced her October 22, 2010 motion to amend and included a copy of the AJ's October 25, 2010 order denying her motion to amend. On February 17, 2011, Complainant filed an EEO complaint involving the new claims.
The Agency issued a final decision dismissing Complainant's complaint pursuant to
29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact.1 The Agency specifically noted that the AJ had denied Complainant's October 22, 2010 motion to amend. The Agency, construing Complainant's motion to amend as the date of her initial EEO Counselor contact, found that the October 22, 2010 EEO Counselor contact occurred more than 45 days after the November 2009 matters alleged to be discriminatory.
The previous decision reversed the Agency's final decision dismissing Complainant's complainant, finding that the Agency failed to meet its burden of obtaining sufficient information to support a reasoned determination as to timeliness. Specifically, the previous decision stated, "[W]e are unable to determine from the evidence in the record before us if Complainant's EEO contact was timely ... The Agency did not identify the date on which these claims were brought to the AJ's attention."
ARGUMENTS ON RECONSIDERATION
On request for reconsideration, the Agency contended that the previous decision involved a clearly erroneous interpretation of material fact. The Agency argued that, contrary to the previous decision's statement, the record clearly indicates that Complainant brought the November 2009 claims to the AJ's attention in her October 22, 2010 motion to amend. Therefore, argued the Agency, Complainant's October 22, 2010 EEO Counselor contact was untimely with respect to her November 2009 claims.
Complainant did not respond to the Agency's request for reconsideration.
ANALYSIS
Upon review, the Commission finds that the Agency's request for reconsideration meets the criteria for 29 C.F.R. § 1614.405(b) because the previous decision contained a clearly erroneous interpretation of material fact. Specifically, we find that the previous decision clearly erred in finding that, because the Agency "did not identify the date on which these claims were brought to the AJ's attention," the Agency failed to meet its burden to prove that Complainant's EEO Counselor contact was untimely. In so finding, we note that the Agency's final decision cited October 22, 2010 as the date on which Complainant filed her motion to amend her complaint. In addition, we note that Complainant herself, in her letter to the EEO Counselor, referenced her October 22, 2010 motion to amend and included a copy of the AJ's October 25, 2010 order denying her motion to amend. It is undisputed by the parties that Complainant brought the November 2009 claims to the AJ's attention on October 22, 2010, when she filed her motion to amend. Based on the above, we find that the record contains sufficient evidence regarding the date on which Complainant brought her new claims to the AJ's attention.
EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides that the agency shall dismiss a complaint that fails to comply with the applicable time limits contained in § 1614.105, unless the agency extends the time limits in accordance with § 1614.604(c).
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. § 1614.105(a)(2) provides that the agency or the Commission shall extend the time limits when the individual shows that she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the EEO Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
After requesting a hearing, a complainant may file a motion with the administrative judge to amend a complaint to include claims like or related to those raised in the complaint.
29 C.F.R. § 1614.106(d). If the administrative judge concludes that the new claims are not like or related to any claims pending in the complaint, he or she should deny the motion and order the agency to commence processing the new claims as a separate EEO complaint. Equal Employment Opportunity Commission Handbook for Administrative Judges, at Ch. 1, § II.B.2 (July 1, 2002). The order should instruct the agency that the filing date of the motion to amend the complaint is the date to be used to determine if initial EEO Counselor contact was timely under 29 C.F.R. § 1614.105(a).2 Id.
Here, we find that the Agency properly dismissed Complainant's complaint for untimely EEO Counselor contact. The record reflects that the alleged discriminatory events occurred on or about November 5, 2009. Complainant therefore was required to initiate contact with an EEO Counselor by December 21, 2009 in order to fall within the 45-day limitation period, but Complainant did not initiate contact until October 22, 2010 - the date she filed the motion to amend her complaint. Moreover, there is no indication in the record that Complainant was unaware of the time limitation for contacting an EEO Counselor, was unaware that the discriminatory matters occurred, or was prevented by circumstances beyond her control from contacting an EEO Counselor. | Tenika King,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520120116
Appeal No. 0120112566
Agency No. 2003-0323-2011100485
GRANT
The Agency timely requested reconsideration of the decision in Tenika King v. Department of Veterans Affairs, EEOC Appeal No. 0120112566 (October 7, 2011). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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.
See 29 C.F.R. § 1614.405(b).
ISSUE PRESENTED
The issue presented is whether the previous decision clearly erred in finding that the Agency failed to meet its burden to prove that Complainant's EEO Counselor contact was untimely.
BACKGROUND
In the underlying case, Complainant alleged that the Agency subjected her to discrimination on the basis of disability when: (1) on November 4, 2009, she was transferred from the first floor to the second floor; (2) on November 4, 2009, she was denied a reasonable accommodation; and (3) on November 5, 2009, she was forced to resign.
On October 22, 2010, Complainant filed a motion with an EEOC Administrative Judge (AJ) to amend a pending EEO complaint (Agency No. 2003-0323-2010100471, EEOC Hearing No. 420-2010-00179X) to include the above new claims, which she believed were like or related to those raised in a pending complaint.
On October 25, 2010, the AJ issued an order denying Complainant's motion to amend. Specifically, the AJ found that the new claims were not like or related to the claims raised in the pending complaint. In addition, the AJ stated that, if timely, the Agency should investigate the new claims as separate allegations of discrimination.
On November 2, 2010, Complainant contacted an EEO Counselor regarding the new claims. In her letter to the EEO Counselor, Complainant referenced her October 22, 2010 motion to amend and included a copy of the AJ's October 25, 2010 order denying her motion to amend. On February 17, 2011, Complainant filed an EEO complaint involving the new claims.
The Agency issued a final decision dismissing Complainant's complaint pursuant to
29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact.1 The Agency specifically noted that the AJ had denied Complainant's October 22, 2010 motion to amend. The Agency, construing Complainant's motion to amend as the date of her initial EEO Counselor contact, found that the October 22, 2010 EEO Counselor contact occurred more than 45 days after the November 2009 matters alleged to be discriminatory.
The previous decision reversed the Agency's final decision dismissing Complainant's complainant, finding that the Agency failed to meet its burden of obtaining sufficient information to support a reasoned determination as to timeliness. Specifically, the previous decision stated, "[W]e are unable to determine from the evidence in the record before us if Complainant's EEO contact was timely ... The Agency did not identify the date on which these claims were brought to the AJ's attention."
ARGUMENTS ON RECONSIDERATION
On request for reconsideration, the Agency contended that the previous decision involved a clearly erroneous interpretation of material fact. The Agency argued that, contrary to the previous decision's statement, the record clearly indicates that Complainant brought the November 2009 claims to the AJ's attention in her October 22, 2010 motion to amend. Therefore, argued the Agency, Complainant's October 22, 2010 EEO Counselor contact was untimely with respect to her November 2009 claims.
Complainant did not respond to the Agency's request for reconsideration.
ANALYSIS
Upon review, the Commission finds that the Agency's request for reconsideration meets the criteria for 29 C.F.R. § 1614.405(b) because the previous decision contained a clearly erroneous interpretation of material fact. Specifically, we find that the previous decision clearly erred in finding that, because the Agency "did not identify the date on which these claims were brought to the AJ's attention," the Agency failed to meet its burden to prove that Complainant's EEO Counselor contact was untimely. In so finding, we note that the Agency's final decision cited October 22, 2010 as the date on which Complainant filed her motion to amend her complaint. In addition, we note that Complainant herself, in her letter to the EEO Counselor, referenced her October 22, 2010 motion to amend and included a copy of the AJ's October 25, 2010 order denying her motion to amend. It is undisputed by the parties that Complainant brought the November 2009 claims to the AJ's attention on October 22, 2010, when she filed her motion to amend. Based on the above, we find that the record contains sufficient evidence regarding the date on which Complainant brought her new claims to the AJ's attention.
EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides that the agency shall dismiss a complaint that fails to comply with the applicable time limits contained in § 1614.105, unless the agency extends the time limits in accordance with § 1614.604(c).
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. § 1614.105(a)(2) provides that the agency or the Commission shall extend the time limits when the individual shows that she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the EEO Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
After requesting a hearing, a complainant may file a motion with the administrative judge to amend a complaint to include claims like or related to those raised in the complaint.
29 C.F.R. § 1614.106(d). If the administrative judge concludes that the new claims are not like or related to any claims pending in the complaint, he or she should deny the motion and order the agency to commence processing the new claims as a separate EEO complaint. Equal Employment Opportunity Commission Handbook for Administrative Judges, at Ch. 1, § II.B.2 (July 1, 2002). The order should instruct the agency that the filing date of the motion to amend the complaint is the date to be used to determine if initial EEO Counselor contact was timely under 29 C.F.R. § 1614.105(a).2 Id.
Here, we find that the Agency properly dismissed Complainant's complaint for untimely EEO Counselor contact. The record reflects that the alleged discriminatory events occurred on or about November 5, 2009. Complainant therefore was required to initiate contact with an EEO Counselor by December 21, 2009 in order to fall within the 45-day limitation period, but Complainant did not initiate contact until October 22, 2010 - the date she filed the motion to amend her complaint. Moreover, there is no indication in the record that Complainant was unaware of the time limitation for contacting an EEO Counselor, was unaware that the discriminatory matters occurred, or was prevented by circumstances beyond her control from contacting an EEO Counselor.
Accordingly, we find that the Agency properly dismissed Complainant's complaint for untimely EEO Counselor contact.
CONCLUSION
After reconsidering the previous decision and the entire record, the Commission finds that the Agency's request meets the criteria of 29 C.F.R. § 1614.405(b), and it is the decision of the Commission to GRANT the request. The Commission REVERSES its previous decision in Tenika King v. Department of Veterans Affairs, EEOC Appeal No. 0120112566 (October 7, 2011) and AFFIRMS the Agency's final decision dismissing Complainant's complaint. The Agency does not have to comply with our previous Order. There is no further right of administrative appeal on the decision of the Commission on a Request to Reconsider.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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:
______________________________
Bernadette B. Wilson
Acting Executive Officer
Executive Secretariat
_5/30/12_________________
Date
1 The Agency also dismissed Complainant's complaint pursuant to 29 C.F.R. § 1614.107(a)(1), for stating the same claim that is pending before or has been decided by the agency or Commission. The previous decision, however, found that the complaint did not state the same claim. The Agency did not contest that the previous decision's erred in this regard.
2 Similarly, the Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Ch. 5, § III.B.3 (Nov. 9, 1999) also provides that when an agency concludes that the new claims are not like or related to any claims pending in the complaint, the postmark date of the letter (from complainant requesting an amendment) to the EEO Director or Complaints Manager would be the date for time computation purposes used to determine if initial counselor contact was timely under § 1614.105(b).
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234 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120161940.txt | 0120161940.txt | TXT | text/plain | 11,752 | Jeramy R.,1 Complainant, v. Eric K. Fanning, Secretary, Department of the Army, Agency. | April 18, 2016 | Appeal Number: 0120161940
Background:
At the time of events giving rise to this complaint, Complainant worked as an EEO Specialist/Disability Program Manager at the Agency's facility in Fort Benning, Georgia.
In September 2014, Complainant's attorney (Attorney) sought to modify the issues accepted in his pending EEO matter. The Agency asked for additional information specifically if Complainant sought to amend a pending EEO complaint or to start a new precomplaint for a new EEO matter. The Attorney failed to inform the Agency of their wish and did not raise the issues with the Agency. In August 2015, Complainant raised the matter with the Equal Employment Opportunity Commission Administrative Judge (AJ) who was presiding over the hearing request in his pending EEO complaint.2 Complainant asserted that the Agency had not taken action on his complaint he raised in September 2014, as such he wished to raise the claims with the AJ in an EEOC hearing.
The AJ found that Complainant had not shown that he had tried to amend the pending EEO complaint with the additional claims prior to this instant request. As such, the AJ granted Complainant's request to amend the claims that were like or related to the pending. However, the AJ also denied in part Complainant's request finding that some of the claims were unrelated to the pending EEO complaint. The AJ also found that Complainant failed to show that he tried to raise these claims after the Agency requested additional information in September and October 2014, and did not raise these issues with the AJ until August 2015.
Based on the AJ's denial of the unrelated claims, Complainant contacted the Agency to process these claims. Complainant contacted the EEO Counselor on February 17, 2016. When the matter could not be resolved informally, Complainant was issued a notice of right to file a formal complaint. On March 24, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of national origin (Nigerian), sex (male), disability, age (55), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and Section 501 of the Rehabilitation Act of 1973 when:
1. Between October 1, 2013 to September 26, 2014, Complainant was not allowed to attend: (1) EEO Officers Course, (2) Advance Mediation Course, (3) Intermediate CES Leadership Course, and (4) Advanced CES Leadership Course;
2. Between October 1, 2013 to September 26, 2014, Complainant was not provided a mid-point performance evaluation;
3. On September 1, 2014, Complainant was denied monetary awards despite an excellent performance evaluation;
4. On August 25, 2014, Complainant was not promoted and/or selected for the position of a GS-12, EEO Specialist (Job Announcement #SCEA140629441117162) at the Fort Benning, Georgia EEO Office; and
5. From January 27, 2014 to present, Complainant was denied medical accommodations
The Agency dismissed claim (1) - (4) pursuant to 29 C.F.R. §1614.107(a)(2) for untimely EEO Counselor contact. The Agency noted that the events were raised with the EEO Counselor back in September 2014. However, Complainant's attorney was asked to provide additional guidance to the Agency on whether he was trying to file a new pre-complaint or a request to amend a complaint that was pending before the Agency. The Attorney failed to do so and did not raise the claims until August 2016, with the AJ. The Agency determined that Complainant failed to raise these events with the EEO Counselor within 45 calendar days. Therefore, the Agency dismissed claims (1) - (4). As for claim (5), the Agency noted that this claim is before the AJ as part of Complainant's prior EEO complaint.
This appeal followed.
Legal Analysis:
EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105, §1614.106 and §1614.204(c), unless the agency extends the time limits in accordance with §1614.604(c).
EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the agency or the Commission to extend the time limit if the complainant can establish that complainant was not aware of the time limit, that complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond his control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the agency or Commission.
Upon review of the record, we find that the Agency's dismissal was appropriate. The record showed that Complainant raised claims (1) - (4) with the Agency but the Attorney failed to inform the Agency whether he wanted to amend the pending complaint or to process the claims as a new matter. The AJ held that Complainant failed to provide evidence that the matter had been raised with the Agency. Further, Complainant requested the hearing with the AJ in February 2015, but did not raise the claims here in until August 2015. In his August 2015 letter to the AJ, Complainant falsely asserted that these claims were accepted as a complaint by the Agency. We find that Complainant has not provided sufficient reason to extend the time limits. Therefore, we affirm the dismissal of claims (1) - (4) pursuant to 29 C.F.R. §1614.107(a)(2).
The Agency dismissed claim (5) pursuant to 29 C.F.R. § 1614.107(a)(1). The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that the Agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the Agency or Commission. In claim (5), Complainant asserted that he was denied accommodations since January 1, 2014. The Agency indicated that this claim is part of Complainant's prior EEO complaint which is before the AJ. A review of Complainant's prior EEO complaint indicates that Complainant alleged from May 23, 2011 through August 27, 2014, he was denied reasonable accommodations. As such, we find that Complainant has alleged the same claim that is pending before the AJ. Therefore, we find that the Agency's dismissal of this claim was appropriate. | Jeramy R.,1
Complainant,
v.
Eric K. Fanning,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120161940
Agency No. ARIMCOMHQ16FEB00605
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 18, 2016, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an EEO Specialist/Disability Program Manager at the Agency's facility in Fort Benning, Georgia.
In September 2014, Complainant's attorney (Attorney) sought to modify the issues accepted in his pending EEO matter. The Agency asked for additional information specifically if Complainant sought to amend a pending EEO complaint or to start a new precomplaint for a new EEO matter. The Attorney failed to inform the Agency of their wish and did not raise the issues with the Agency. In August 2015, Complainant raised the matter with the Equal Employment Opportunity Commission Administrative Judge (AJ) who was presiding over the hearing request in his pending EEO complaint.2 Complainant asserted that the Agency had not taken action on his complaint he raised in September 2014, as such he wished to raise the claims with the AJ in an EEOC hearing.
The AJ found that Complainant had not shown that he had tried to amend the pending EEO complaint with the additional claims prior to this instant request. As such, the AJ granted Complainant's request to amend the claims that were like or related to the pending. However, the AJ also denied in part Complainant's request finding that some of the claims were unrelated to the pending EEO complaint. The AJ also found that Complainant failed to show that he tried to raise these claims after the Agency requested additional information in September and October 2014, and did not raise these issues with the AJ until August 2015.
Based on the AJ's denial of the unrelated claims, Complainant contacted the Agency to process these claims. Complainant contacted the EEO Counselor on February 17, 2016. When the matter could not be resolved informally, Complainant was issued a notice of right to file a formal complaint. On March 24, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of national origin (Nigerian), sex (male), disability, age (55), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and Section 501 of the Rehabilitation Act of 1973 when:
1. Between October 1, 2013 to September 26, 2014, Complainant was not allowed to attend: (1) EEO Officers Course, (2) Advance Mediation Course, (3) Intermediate CES Leadership Course, and (4) Advanced CES Leadership Course;
2. Between October 1, 2013 to September 26, 2014, Complainant was not provided a mid-point performance evaluation;
3. On September 1, 2014, Complainant was denied monetary awards despite an excellent performance evaluation;
4. On August 25, 2014, Complainant was not promoted and/or selected for the position of a GS-12, EEO Specialist (Job Announcement #SCEA140629441117162) at the Fort Benning, Georgia EEO Office; and
5. From January 27, 2014 to present, Complainant was denied medical accommodations
The Agency dismissed claim (1) - (4) pursuant to 29 C.F.R. §1614.107(a)(2) for untimely EEO Counselor contact. The Agency noted that the events were raised with the EEO Counselor back in September 2014. However, Complainant's attorney was asked to provide additional guidance to the Agency on whether he was trying to file a new pre-complaint or a request to amend a complaint that was pending before the Agency. The Attorney failed to do so and did not raise the claims until August 2016, with the AJ. The Agency determined that Complainant failed to raise these events with the EEO Counselor within 45 calendar days. Therefore, the Agency dismissed claims (1) - (4). As for claim (5), the Agency noted that this claim is before the AJ as part of Complainant's prior EEO complaint.
This appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105, §1614.106 and §1614.204(c), unless the agency extends the time limits in accordance with §1614.604(c).
EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the agency or the Commission to extend the time limit if the complainant can establish that complainant was not aware of the time limit, that complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond his control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the agency or Commission.
Upon review of the record, we find that the Agency's dismissal was appropriate. The record showed that Complainant raised claims (1) - (4) with the Agency but the Attorney failed to inform the Agency whether he wanted to amend the pending complaint or to process the claims as a new matter. The AJ held that Complainant failed to provide evidence that the matter had been raised with the Agency. Further, Complainant requested the hearing with the AJ in February 2015, but did not raise the claims here in until August 2015. In his August 2015 letter to the AJ, Complainant falsely asserted that these claims were accepted as a complaint by the Agency. We find that Complainant has not provided sufficient reason to extend the time limits. Therefore, we affirm the dismissal of claims (1) - (4) pursuant to 29 C.F.R. §1614.107(a)(2).
The Agency dismissed claim (5) pursuant to 29 C.F.R. § 1614.107(a)(1). The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that the Agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the Agency or Commission. In claim (5), Complainant asserted that he was denied accommodations since January 1, 2014. The Agency indicated that this claim is part of Complainant's prior EEO complaint which is before the AJ. A review of Complainant's prior EEO complaint indicates that Complainant alleged from May 23, 2011 through August 27, 2014, he was denied reasonable accommodations. As such, we find that Complainant has alleged the same claim that is pending before the AJ. Therefore, we find that the Agency's dismissal of this claim was appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
November 10, 2016
__________________
Date
2 The record indicated that Complainant requested a hearing in his pending EEO complaint in February 2015.
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235 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120070881.r.txt | 0120070881.r.txt | TXT | text/plain | 9,552 | Gary J. Scsavnicki, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. | November 3, 2006 | Appeal Number: 0120070881
Case Facts:
Complainant filed a timely appeal with this Commission from the final agency decision dated November 3, 2006, dismissing his formal EEO complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
During the relevant time, complainant was employed as a City Carrier, Q-01, at the agency's St. Petersburg, Florida Post Office.
On August 16, 2006, complainant initiated EEO contact. Informal efforts to resolve his concerns were unsuccessful.
On October 5, 2006, complainant filed the instant complainant. Therein, complainant claimed that he was subjected to discrimination on the bases of race (Caucasian) and sex (male) when:
1. on November 30, 2005, he was informed why other employees had an earlier seniority than him;
2. on June 11, 2006, he was notified that he would be assigned to Central Station; and
3. on September 20, 2006, he was displeased with the outcome of the REDRESS mediation.
In its November 3, 2006 final decision, the agency dismissed claims 1 and 2 pursuant to 29 C.F.R. § 1614.1076(a)(2) on the grounds of untimely EEO Counselor contact. The agency determined that complainant's initial EEO contact occurred on August 16, 2006, which it found to be beyond the 45-day limitation period. The agency further determined that complainant had or should have had reasonable suspicion of unlawful employment discrimination prior to August 16, 2006. The agency determined that EEO posters addressing the 45-day requisite time period were on display in complainant's workplace during the time. The agency also dismissed claims 1 and 2 on alternative grounds of failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1), finding that complainant was not aggrieved.
The agency dismissed claim 3 pursuant to 29 C.F.R. § 1614.107(a)(8) on the grounds that complainant claimed dissatisfaction with the processing of a previously filed EEO complaint.
On appeal, complainant contends that he was unaware of the time limits for contacting an EEO Counselor. Complainant further states that he never saw any EEO posters during the relevant time. In support of his assertion, complainant submits copies of statements from three co-workers who assert that no EEO posters were on display during the relevant period. Furthermore, complainant states that he was aggrieved by the agency's action because he "lost wages, biding rights, vacation pick, holiday pay, seniority rights and promotion to regular."
In response to complainant's claim that he was unaware of the proper EEO procedures, the agency submits an affidavit from a Supervisor, Customer Services (SCS) indicating that EEO posters, including applicable time limits, were posted during the relevant time. The agency also submits a copy of EEO Poster 72 outlining the 45-day limitation period for contacting an EEO Counselor.
Claims 1 and 2
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999). Thus, 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.
EEOC Regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
Here, complainant did not contact an EEO Counselor until more than 45 days after the incidents in question. The agency has indicated that EEO posters are properly posted in the work place. Specifically, we note in his affidavit, SCS stated that since "2005 and 11/06, EEO Poster 72 dated Dec 05 is displayed in the following location: hallway outside cafeteria." The Commission determines that complainant provides no persuasive justification for the delay in initiating EEO Counselor contact.
Because we affirm the agency's dismissal of claims 1 and 2 on the grounds of untimely EEO Counselor contact, we find it unnecessary to address them on alternative grounds.
Claim 3
Complainant claimed that on September 20, 2006, he was displeased with the outcome of the REDRESS mediation. While the agency dismissed claim 3 pursuant to 29 C.F.R. § 1614.107(a)(8), we determine that this claim is more properly analyzed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. After a review of the record, we find that complainant failed to specify any personal loss or harm that he suffered with respect to a term, condition or privilege of employment as a result of the alleged incident. Therefore, we find that the agency properly dismissed claim 3.
Final Decision:
Accordingly, the agency's dismissal of the instant complaint is AFFIRMED. | Gary J. Scsavnicki,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070881
Agency No. 4H-335-0164-06
DECISION
Complainant filed a timely appeal with this Commission from the final agency decision dated November 3, 2006, dismissing his formal EEO complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
During the relevant time, complainant was employed as a City Carrier, Q-01, at the agency's St. Petersburg, Florida Post Office.
On August 16, 2006, complainant initiated EEO contact. Informal efforts to resolve his concerns were unsuccessful.
On October 5, 2006, complainant filed the instant complainant. Therein, complainant claimed that he was subjected to discrimination on the bases of race (Caucasian) and sex (male) when:
1. on November 30, 2005, he was informed why other employees had an earlier seniority than him;
2. on June 11, 2006, he was notified that he would be assigned to Central Station; and
3. on September 20, 2006, he was displeased with the outcome of the REDRESS mediation.
In its November 3, 2006 final decision, the agency dismissed claims 1 and 2 pursuant to 29 C.F.R. § 1614.1076(a)(2) on the grounds of untimely EEO Counselor contact. The agency determined that complainant's initial EEO contact occurred on August 16, 2006, which it found to be beyond the 45-day limitation period. The agency further determined that complainant had or should have had reasonable suspicion of unlawful employment discrimination prior to August 16, 2006. The agency determined that EEO posters addressing the 45-day requisite time period were on display in complainant's workplace during the time. The agency also dismissed claims 1 and 2 on alternative grounds of failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1), finding that complainant was not aggrieved.
The agency dismissed claim 3 pursuant to 29 C.F.R. § 1614.107(a)(8) on the grounds that complainant claimed dissatisfaction with the processing of a previously filed EEO complaint.
On appeal, complainant contends that he was unaware of the time limits for contacting an EEO Counselor. Complainant further states that he never saw any EEO posters during the relevant time. In support of his assertion, complainant submits copies of statements from three co-workers who assert that no EEO posters were on display during the relevant period. Furthermore, complainant states that he was aggrieved by the agency's action because he "lost wages, biding rights, vacation pick, holiday pay, seniority rights and promotion to regular."
In response to complainant's claim that he was unaware of the proper EEO procedures, the agency submits an affidavit from a Supervisor, Customer Services (SCS) indicating that EEO posters, including applicable time limits, were posted during the relevant time. The agency also submits a copy of EEO Poster 72 outlining the 45-day limitation period for contacting an EEO Counselor.
Claims 1 and 2
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999). Thus, 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.
EEOC Regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
Here, complainant did not contact an EEO Counselor until more than 45 days after the incidents in question. The agency has indicated that EEO posters are properly posted in the work place. Specifically, we note in his affidavit, SCS stated that since "2005 and 11/06, EEO Poster 72 dated Dec 05 is displayed in the following location: hallway outside cafeteria." The Commission determines that complainant provides no persuasive justification for the delay in initiating EEO Counselor contact.
Because we affirm the agency's dismissal of claims 1 and 2 on the grounds of untimely EEO Counselor contact, we find it unnecessary to address them on alternative grounds.
Claim 3
Complainant claimed that on September 20, 2006, he was displeased with the outcome of the REDRESS mediation. While the agency dismissed claim 3 pursuant to 29 C.F.R. § 1614.107(a)(8), we determine that this claim is more properly analyzed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. After a review of the record, we find that complainant failed to specify any personal loss or harm that he suffered with respect to a term, condition or privilege of employment as a result of the alleged incident. Therefore, we find that the agency properly dismissed claim 3.
Accordingly, the agency's dismissal of the instant complaint is AFFIRMED.
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
October 2, 2007
__________________
Date
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036 | [
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236 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0520130316.txt | 0520130316.txt | TXT | text/plain | 9,754 | Sharisse Morris, Complainant, v. Chuck Hagel, Secretary, Department of Defense (Defense Information Systems Agency), Agency. | February 5, 2013 | Appeal Number: 0120102589 | Sharisse Morris,
Complainant,
v.
Chuck Hagel,
Secretary,
Department of Defense
(Defense Information Systems Agency),
Agency.
Request No. 0520130316
Appeal No. 0120102589
Agency Nos. DOD-DISA-STL-05-002, DOD-DISA-STL-05-008
DENIAL
Complainant timely requested reconsideration of the decision in Sharisse Morris v. Department of Defense, EEOC Appeal No. 0120102589 (February 5, 2013). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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.
See 29 C.F.R. § 1614.405(b).
In the underlying case, Complainant filed two EEO complaints alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (Black), and reprisal for prior protected EEO activity when:
1. In June 2004, management placed her on the Voluntary Early Retirement Authority/Voluntary Separation Incentive Pay (VERA/VSIP) list because it received complaints about her as a team leader;
2. On June 25, 2004, management informed her that she would not be reassigned as a permanent supervisor into the Chief, Operating Section position (a position she had served a detail in since May 1, 2001) and management failed to inform her that the position was abolished in April 2004; and
3. From April 2004 to March 2005, management subjected her to a hostile work environment harassment when:
a. The EEO Director shared Complainant's confidential EEO information with the St. Louis Office Director, fabricated a reason for removal of personnel records from her Official Personnel Folder, interfered with the processing of her informal complaint by pressuring her to sign a settlement agreement, and management failed to investigate and provide her an opportunity to respond to complaints about her from contractors;
b. In July 2004, the EEO Director pressured Complainant to reframe her new reassignment claim as a settlement breach claim instead, and an EEO Counselor pressured her to sign a settlement agreement and failed to provide her with EEO counseling;
c. In February 2005, management tried to pressure her First Level Supervisor to discipline her over contractor complaints against her;
d. In February 2005, management placed her under surveillance and recorded her contact with contract employees; and
e. In January 2005, management instituted procedures aimed at allowing contractors to make false accusations against her.
The appellate decision addressed claims 1-3 on the merits and affirmed the Agency's final decision finding no discrimination. Specifically, the appellate decision found that Complainant failed to prove, by a preponderance of the evidence, that the Agency subjected her to disparate treatment or hostile work environment harassment based on race, sex, color, or reprisal.
In so finding, the appellate decision stated that the record revealed that the Agency's actions were in response to or related to addressing the following set of facts: (1) in 2004, the Agency planned a reduction in force and offered Complainant and other employees VERA/VSIP as a tool to decrease the workforce prior to the actual reduction; (2) prior to or about the same time, the Agency received complaints about Complainant from contractors who had employees placed at the Agency and who worked with Complainant; (3) the Agency took action to address the contractor complaints but did not take disciplinary action against Complainant; (4) in 2001, Complainant and the Agency entered into a settlement agreement which provided, in pertinent part, that the Agency would place her in a permanent supervisory position; (5) the Agency was erroneously advised that Complainant could not receive a permanent supervisory position because she had fewer than three employees, but later retroactively reassigned her to the Chief, Operating Section position; and (6) when Complainant initiated EEO counseling regarding claims 1 and 2, she raised the issue of a permanent supervisory position with the EEO Counselor, who identified the claim as a breach of the 2001 settlement agreement. The appellate decision found that the Agency's actions were not based on impermissible factors and that the EEO staff sought to determine the appropriate handling of Complainant's claims.
In her request for reconsideration, Complainant contended that the appellate decision's "explicit and implied findings" require correction. In large part, Complainant focused on the actions of the EEO Office (claim 3a and 3b). Specifically, Complainant argued that the EEO Office's attempt to mischaracterize her reassignment claim (claim 2) as a breach of settlement agreement claim was inconsistent with the Commission's rules for interpreting settlement agreements and rules regarding the duties of an EEO Counselor. In addition, Complainant argued that the Agency did not have a procedure for addressing her allegations of improper complaint processing and that the Agency's lack of such a procedure was a per se violation of EEOC regulations. Finally, Complainant requested that the Commission review the arguments she previously made on appeal.
Upon review, we find that Complainant's request for reconsideration does not demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Specifically, Complainant failed to show that the appellate decision clearly erred in its ultimate finding of no discrimination. Although Complainant disagreed with some of the appellate decision's factual findings, her request did not establish that the Agency's actions in claims 1-3 were based on her race, sex, color, or prior EEO activity. Moreover, we find that claims 3a and 3b, to the extent that they involve the actions of the EEO Office during the pre-complaint processing of the reassignment claim (claim 2), cannot support Complainant's claim of hostile work environment harassment based on race, sex, color, or prior EEO activity. We note that allegations of dissatisfaction with the agency processing of a previously filed complaint or a pending complaint cannot be the subject of an EEO complaint.
See 29 C.F.R. § 1614.107(a)(8); Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 5, IV.A.12 and IV.D (Nov. 9, 1999).1
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120102589 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
__8/27/13________________
Date
1 We remind the Agency that, when a complainant raises allegations of dissatisfaction regarding the processing of his or her pending complaint, the Agency official responsible for the quality of complaints processing must add a record of the complainant's concerns and any actions the Agency took to resolve the concerns, to the complaint file maintained on the underlying complaint. If no action was taken, the file must contain an explanation of the Agency's reason(s) for not taking any action. See EEO MD-110, Ch. 5, IV.D.2.
------------------------------------------------------------
------------------------------------------------------------
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237 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a01511.r.txt | 01a01511.r.txt | TXT | text/plain | 9,964 | December 2,
1999 | Appeal Number: 01A01511
Legal Analysis:
The Commission finds that the agency's decision dated December 2,
1999, dismissing complainant's complaint due to untimely EEO contact
is proper pursuant to the regulation set forth at 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified and hereinafter referred to as 29 C.F.R. §
1614.107(a)(2)).<1> The complaint involves the denial of reasonable
accommodation on September 1, 1998, the first day of complainant's
employment within the agency, and his subsequent removal during his leave
effective November 2, 1998. Complainant contacted an EEO Counselor
with regard to the matters on August 17, 1999, which was beyond the
45-day time limit. The EEO Counselor's Report indicates that during EEO
counseling, complainant and his attorney asserted that they unsuccessfully
asked several individuals at the agency about filing an EEO complaint.
When the Counselor asked complainant and his attorney to provide the
names of those individuals, they failed to do so. The record indicates
that on April 23, 1999, complainant previously filed a written complaint
with the Commonwealth of Massachusetts Commission Against Discrimination,
requesting the charge be filed with the Commission.
The agency, in its decision, stated that complainant had constructive
knowledge of the EEO process since EEO notices were posted at the postal
facility where complainant was employed advising its employees of the
time limit for seeking counseling. The agency also indicated that on
August 31, 1998, complainant attended New Employee Orientation, and during
this orientation, EEO time frames were discussed and he was provided with
an Orientation for New Employees Learner's Workbook, which included the
requisite time limit. Complainant appealed the agency's decision.
In response to complainant's appeal, the agency submits an affidavit
from the Postmaster's assistant indicating that it is her responsibility
to post the EEO posters in the office where complainant was employed,
and the EEO posters, including the 45-day time limit, were posted in
a secured bulletin display case near the break room during the time
of the alleged incidents. The agency also submits an affidavit from a
Training Technician declaring that complainant attended the August 31,
1998 orientation session and received a copy of the Learner's Workbook.
Specifically, the agency submits a copy of the attendance sign in sheet,
including complainant's signature, for the August 31, 1998 orientation
and a copy of the Learner's Workbook, which included the 45-day time
limit to contact an EEO Counselor.
On January 5, 2000, complainant, through his attorney, submits his
appeal brief indicating that the Postmaster's Assistant advised him that
there was no procedure available to him within the agency to file an
EEO complaint. Complainant contends that he was given no information or
false information as to how to proceed with his complaint. Complainant
indicates that he only worked one day at the post office and saw nothing
posted relative to the EEO procedure or its time limit. Specifically,
complainant states that no posting was ever pointed out to him or shown
to him, and he was too busy on his first day to notice anything relative
to such a procedure.
After a review of the record, the Commission finds that complainant
had constructive knowledge of the requisite time limit to contact an
EEO Counselor. The Commission has held that constructive knowledge will
be imputed to an employee when an employer has fulfilled its obligation
of informing employees of their rights and obligations under Title VII.
Thompson v. Department of the Army, EEOC Request 05910474 (September
12, 1991). In the instant case, the agency submits the affidavit
of the Postmaster's Assistant confirming that EEO posters containing
the requisite time limit were on display at complainant's workplace
when complainant was employed. The agency also submits the Training
Technician's affidavit confirming complainant's presence during the
August 31, 1998 New Employee Orientation and his receipt of the Learner's
Workbook, including the 45-day time limit for initiating EEO contact.
Thus, the Commission finds that complainant fails to present adequate
justification to warrant an extension of the applicable time limit for
contacting an EEO Counselor.
Final Decision:
Accordingly, the agency's decision is hereby AFFIRMED. | Ronald E. Gleason, )
Complainant, )
)
v. ) Appeal No. 01A01511
) Agency No. 4B-018-0103-99
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
The Commission finds that the agency's decision dated December 2,
1999, dismissing complainant's complaint due to untimely EEO contact
is proper pursuant to the regulation set forth at 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified and hereinafter referred to as 29 C.F.R. §
1614.107(a)(2)).<1> The complaint involves the denial of reasonable
accommodation on September 1, 1998, the first day of complainant's
employment within the agency, and his subsequent removal during his leave
effective November 2, 1998. Complainant contacted an EEO Counselor
with regard to the matters on August 17, 1999, which was beyond the
45-day time limit. The EEO Counselor's Report indicates that during EEO
counseling, complainant and his attorney asserted that they unsuccessfully
asked several individuals at the agency about filing an EEO complaint.
When the Counselor asked complainant and his attorney to provide the
names of those individuals, they failed to do so. The record indicates
that on April 23, 1999, complainant previously filed a written complaint
with the Commonwealth of Massachusetts Commission Against Discrimination,
requesting the charge be filed with the Commission.
The agency, in its decision, stated that complainant had constructive
knowledge of the EEO process since EEO notices were posted at the postal
facility where complainant was employed advising its employees of the
time limit for seeking counseling. The agency also indicated that on
August 31, 1998, complainant attended New Employee Orientation, and during
this orientation, EEO time frames were discussed and he was provided with
an Orientation for New Employees Learner's Workbook, which included the
requisite time limit. Complainant appealed the agency's decision.
In response to complainant's appeal, the agency submits an affidavit
from the Postmaster's assistant indicating that it is her responsibility
to post the EEO posters in the office where complainant was employed,
and the EEO posters, including the 45-day time limit, were posted in
a secured bulletin display case near the break room during the time
of the alleged incidents. The agency also submits an affidavit from a
Training Technician declaring that complainant attended the August 31,
1998 orientation session and received a copy of the Learner's Workbook.
Specifically, the agency submits a copy of the attendance sign in sheet,
including complainant's signature, for the August 31, 1998 orientation
and a copy of the Learner's Workbook, which included the 45-day time
limit to contact an EEO Counselor.
On January 5, 2000, complainant, through his attorney, submits his
appeal brief indicating that the Postmaster's Assistant advised him that
there was no procedure available to him within the agency to file an
EEO complaint. Complainant contends that he was given no information or
false information as to how to proceed with his complaint. Complainant
indicates that he only worked one day at the post office and saw nothing
posted relative to the EEO procedure or its time limit. Specifically,
complainant states that no posting was ever pointed out to him or shown
to him, and he was too busy on his first day to notice anything relative
to such a procedure.
After a review of the record, the Commission finds that complainant
had constructive knowledge of the requisite time limit to contact an
EEO Counselor. The Commission has held that constructive knowledge will
be imputed to an employee when an employer has fulfilled its obligation
of informing employees of their rights and obligations under Title VII.
Thompson v. Department of the Army, EEOC Request 05910474 (September
12, 1991). In the instant case, the agency submits the affidavit
of the Postmaster's Assistant confirming that EEO posters containing
the requisite time limit were on display at complainant's workplace
when complainant was employed. The agency also submits the Training
Technician's affidavit confirming complainant's presence during the
August 31, 1998 New Employee Orientation and his receipt of the Learner's
Workbook, including the 45-day time limit for initiating EEO contact.
Thus, the Commission finds that complainant fails to present adequate
justification to warrant an extension of the applicable time limit for
contacting an EEO Counselor. Accordingly, the agency's decision is
hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
June 16, 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 O1On 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.
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238 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A11516.txt | 01A11516.txt | TXT | text/plain | 7,987 | Connor, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency. | March 30, 2001 | Appeal Number: 01A11516
Case Facts:
Legal Analysis:
Upon review, the Commission finds that the complaint was properly
dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO
Counselor contact. The record shows that complainant, a former unit
manager for the agency, who resigned on March 15, 1999, was reinstated,
and resigned again on May 21, 1999, applied for a position with the
agency in July 1999. Complainant claims that on August 12, 1999, he
was informed that he had been selected for the position in question.
On October 30, 1999, complainant was allegedly informed that he had been
de-selected for the position based on his attendance record.
On August 4, 2000,<1> complainant sought EEO counseling claiming that
he had been discriminated against on the basis of disability when
on October 30, 1999, he was de-selected for the position of GS-5,
Customer Service Representative due to his attendance record, even though
he had been informed on August 12, 1999, that he had been selected for
the subject position.
Complainant subsequently filed a formal complaint. After being asked
by the agency to explain his delay in seeking counseling, complainant
claimed that after the October 30, 1999 de-selection he became very
depressed and did not do anything concerning the alleged discrimination.
Complainant also stated that after speaking to an agency EEO Specialist,
he was under the impression that he could not file a complaint because
he was no longer employed by the agency.
The record contains an electronic mail message dated December 4,
2000, in which complainant's previous manager stated that he had been
complainant's section chief for approximately three years. The manager
further stated that not only had complainant attended formal training of
the EEO process but also, complainant had shared the EEO process with
his unit employees. Finally, the manager stated that EEO posters were
posted on the agency's premises.
The agency issued a final decision dismissing the complaint for untimely
EEO Counselor contact.
On appeal, complainant contends that because he was no longer an employee
of the agency at the time of the discriminatory events, he thought that
he did not have any recourse within the agency so he did not request
EEO counseling.
Based on the circumstances of this case, we find that complainant had
or should have had constructive knowledge of his EEO rights and duties.
The record discloses that the alleged discriminatory event occurred
on October 30, 1999, when complainant was informed that he had been
de-selected for the position in question. Complainant claims that he
did not do anything because he was depressed and because an agency EEO
Specialist told him that since he was no longer an employee he could
not do anything. On August 4, 2000, almost a year after the alleged
discriminatory event, complainant sought EEO counseling after allegedly
seeking advice from an attorney. The agency issued a final decision
dismissing the complaint. After the agency found that complainant,
a former manager, was familiar with the EEO process, complainant then
claimed on appeal that he did not seek counseling because he thought he
did not have any recourse. We note that on appeal, the agency submits
a copy of an affidavit from the agency EEO Specialist who purported
told complainant that he could not pursue the EEO complaint process
after his employment with the agency; and that the EEO Specialist
denied providing complainant such information. Based on the foregoing,
we find that complainant's arguments are not persuasive.
Final Decision:
Accordingly, the agency's final decision dismissing the complaint for untimely EEO Counselor contact is AFFIRMED. | Mark S. O'Connor v. Department of the Treasury
01A11516
March 30, 2001
.
Mark S. O'Connor,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A11516
Agency No. 01-3027
DECISION
Upon review, the Commission finds that the complaint was properly
dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO
Counselor contact. The record shows that complainant, a former unit
manager for the agency, who resigned on March 15, 1999, was reinstated,
and resigned again on May 21, 1999, applied for a position with the
agency in July 1999. Complainant claims that on August 12, 1999, he
was informed that he had been selected for the position in question.
On October 30, 1999, complainant was allegedly informed that he had been
de-selected for the position based on his attendance record.
On August 4, 2000,<1> complainant sought EEO counseling claiming that
he had been discriminated against on the basis of disability when
on October 30, 1999, he was de-selected for the position of GS-5,
Customer Service Representative due to his attendance record, even though
he had been informed on August 12, 1999, that he had been selected for
the subject position.
Complainant subsequently filed a formal complaint. After being asked
by the agency to explain his delay in seeking counseling, complainant
claimed that after the October 30, 1999 de-selection he became very
depressed and did not do anything concerning the alleged discrimination.
Complainant also stated that after speaking to an agency EEO Specialist,
he was under the impression that he could not file a complaint because
he was no longer employed by the agency.
The record contains an electronic mail message dated December 4,
2000, in which complainant's previous manager stated that he had been
complainant's section chief for approximately three years. The manager
further stated that not only had complainant attended formal training of
the EEO process but also, complainant had shared the EEO process with
his unit employees. Finally, the manager stated that EEO posters were
posted on the agency's premises.
The agency issued a final decision dismissing the complaint for untimely
EEO Counselor contact.
On appeal, complainant contends that because he was no longer an employee
of the agency at the time of the discriminatory events, he thought that
he did not have any recourse within the agency so he did not request
EEO counseling.
Based on the circumstances of this case, we find that complainant had
or should have had constructive knowledge of his EEO rights and duties.
The record discloses that the alleged discriminatory event occurred
on October 30, 1999, when complainant was informed that he had been
de-selected for the position in question. Complainant claims that he
did not do anything because he was depressed and because an agency EEO
Specialist told him that since he was no longer an employee he could
not do anything. On August 4, 2000, almost a year after the alleged
discriminatory event, complainant sought EEO counseling after allegedly
seeking advice from an attorney. The agency issued a final decision
dismissing the complaint. After the agency found that complainant,
a former manager, was familiar with the EEO process, complainant then
claimed on appeal that he did not seek counseling because he thought he
did not have any recourse. We note that on appeal, the agency submits
a copy of an affidavit from the agency EEO Specialist who purported
told complainant that he could not pursue the EEO complaint process
after his employment with the agency; and that the EEO Specialist
denied providing complainant such information. Based on the foregoing,
we find that complainant's arguments are not persuasive. Accordingly,
the agency's final decision dismissing the complaint for untimely EEO
Counselor contact is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
March 30, 2001
__________________
Date
1 While the EEO Counselor's Report shows that complainant sought
counseling on August 28, 2000, the final agency decision found that the
initial EEO Counselor contact was made on August 4, 2000. We will use the
August 4, 2000 date identified in the final decision for our analysis.
We note, moreover, that the discrepancy in the dates does not affect
our determination in this case.
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239 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01991499.r.txt | 01991499.r.txt | TXT | text/plain | 10,227 | December 12, 1998 | Appeal Number: 01991499
Case Facts:
On December 12, 1998,<1> complainant filed a timely appeal of a final
agency decision, which was dated November 4, 1998, dismissing her
complaint due to untimely EEO Counselor contact and/or raising the matter
with the Merit Systems Protection Board (MSPB).<2>
The record indicates that on June 25, 1998, complainant contacted an EEO
Counselor concerning her complaint. In her July 31, 1998 complaint,
complainant alleged that in February 1995, she received a notice
of removal from employment effective March 31, 1995. The record
indicates that complainant was actually removed from employment on
December 19, 1995. Complainant indicated that she previously filed a
grievance/arbitration which was denied on December 18, 1995, and that
she filed an MSPB appeal which was initially denied on October 24, 1997,
and her petition for review of that initial decision was denied on May
28, 1998. Complainant also indicated that her EEO Counselor contact was
untimely because she did not know until she met a former agency employee
that she could file an EEO complaint and a grievance concerning the
same matter at the same time. Complainant stated, however, that she
thereafter chose to file a mixed case with the MSPB.
In its final decision, the agency stated that complainant raised the same
matter with the MSPB, and her EEO Counselor contact with regard to her
complaint was untimely. The agency did not submit a copy of the MSPB's
initial decision and/or a copy of complainant's petition for that appeal.
The agency submitted a copy of an agency managerial official's affidavit
indicating that EEO Posters were displayed at the facility and at the
time when the alleged incident occurred, and included photographs of
the posters in the record.
On appeal, complainant, reiterating her previous arguments, contends
that the union advised her to file a grievance prior to filing an EEO
complaint and she did not know about the 45-day time limit to contact
an EEO Counselor.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of the EEO Counselor within
45 days of the alleged discriminatory event, or the effective date of
an alleged discriminatory personnel action.
The record indicates that complainant was removed from employment on
December 19, 1995, but she did not contact an EEO Counselor until
June 25, 1998, which was beyond the 45-day time limit set by the
regulations. After a review of the record, it appears that complainant
knew about the EEO process on or before December 18, 1995, while her
grievance/arbitration was pending within the agency. Complainant
indicated that after she learned that she could file an EEO complaint
concerning her removal, she chose to file a mixed case complaint within
the MSPB, rather than contact an EEO Counselor.
Furthermore, after a review of the agency managerial official's affidavit,
including a copy of the photographs of the EEO posters, it appears that
complainant had a constructive knowledge of the time limits for initiating
EEO Counselor contact at the relevant time period. The Commission has
held that constructive knowledge will be imputed to an employee when an
employer has fulfilled its obligation of informing employees of their
rights and obligations under Title VII. Thompson v. Department of the
Army, EEOC Request 05910474 (September 12, 1991). Although complainant
denies the agency's posting on appeal, she proffers no evidence to
rebut the agency's argument nor does she provide any evidence as to when
she learned about the requisite time limit to contact an EEO Counselor.
Based on the foregoing, we find that complainant fails to present adequate
justification to warrant an extension of the applicable time limit for
contacting an EEO Counselor.
Final Decision:
Accordingly, the agency's final decision is hereby AFFIRMED. | Gonzella Dorsey, )
Complainant, )
)
)
v. ) Appeal No. 01991499
) Agency No. 4-J-460-0187-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On December 12, 1998,<1> complainant filed a timely appeal of a final
agency decision, which was dated November 4, 1998, dismissing her
complaint due to untimely EEO Counselor contact and/or raising the matter
with the Merit Systems Protection Board (MSPB).<2>
The record indicates that on June 25, 1998, complainant contacted an EEO
Counselor concerning her complaint. In her July 31, 1998 complaint,
complainant alleged that in February 1995, she received a notice
of removal from employment effective March 31, 1995. The record
indicates that complainant was actually removed from employment on
December 19, 1995. Complainant indicated that she previously filed a
grievance/arbitration which was denied on December 18, 1995, and that
she filed an MSPB appeal which was initially denied on October 24, 1997,
and her petition for review of that initial decision was denied on May
28, 1998. Complainant also indicated that her EEO Counselor contact was
untimely because she did not know until she met a former agency employee
that she could file an EEO complaint and a grievance concerning the
same matter at the same time. Complainant stated, however, that she
thereafter chose to file a mixed case with the MSPB.
In its final decision, the agency stated that complainant raised the same
matter with the MSPB, and her EEO Counselor contact with regard to her
complaint was untimely. The agency did not submit a copy of the MSPB's
initial decision and/or a copy of complainant's petition for that appeal.
The agency submitted a copy of an agency managerial official's affidavit
indicating that EEO Posters were displayed at the facility and at the
time when the alleged incident occurred, and included photographs of
the posters in the record.
On appeal, complainant, reiterating her previous arguments, contends
that the union advised her to file a grievance prior to filing an EEO
complaint and she did not know about the 45-day time limit to contact
an EEO Counselor.
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of the EEO Counselor within
45 days of the alleged discriminatory event, or the effective date of
an alleged discriminatory personnel action.
The record indicates that complainant was removed from employment on
December 19, 1995, but she did not contact an EEO Counselor until
June 25, 1998, which was beyond the 45-day time limit set by the
regulations. After a review of the record, it appears that complainant
knew about the EEO process on or before December 18, 1995, while her
grievance/arbitration was pending within the agency. Complainant
indicated that after she learned that she could file an EEO complaint
concerning her removal, she chose to file a mixed case complaint within
the MSPB, rather than contact an EEO Counselor.
Furthermore, after a review of the agency managerial official's affidavit,
including a copy of the photographs of the EEO posters, it appears that
complainant had a constructive knowledge of the time limits for initiating
EEO Counselor contact at the relevant time period. The Commission has
held that constructive knowledge will be imputed to an employee when an
employer has fulfilled its obligation of informing employees of their
rights and obligations under Title VII. Thompson v. Department of the
Army, EEOC Request 05910474 (September 12, 1991). Although complainant
denies the agency's posting on appeal, she proffers no evidence to
rebut the agency's argument nor does she provide any evidence as to when
she learned about the requisite time limit to contact an EEO Counselor.
Based on the foregoing, we find that complainant fails to present adequate
justification to warrant an extension of the applicable time limit for
contacting an EEO Counselor. Accordingly, the agency's final decision
is hereby AFFIRMED.<3>
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:
January 19, 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 Assistant1On 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.
2The Commission notes that the agency was unable to supply a copy
of a certified mail return receipt or any other material capable of
establishing the date complainant received the agency's final decision.
Accordingly, since the agency has failed to fulfill its obligation to
transmit its final decision by a method enabling the agency to show the
date of receipt, the Commission presumes that complainant's appeal was
filed within thirty (30) days of receipt of the agency's final decision.
See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. § 1614.402).
3In view of the affirmance of the dismissal of complainant's complaint
due to untimely EEO Counselor contact, we need not address the agency's
alternative grounds for dismissal, i.e., raising the same matter in an
MSPB appeal.
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240 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a53407_r.txt | 01a53407_r.txt | TXT | text/plain | 7,090 | Demos A. Kuchulis v. Social Security Administration 01A53407 June 7, 2006 . Demos A. Kuchulis, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency. | June 7, 2006 | Appeal Number: 01A53407
Case Facts:
On October 3, 2002, complainant filed a formal EEO complaint in which he
claimed that the agency subjected him to harassment and a hostile work
environment in reprisal for his previous EEO activity when on August 9,
2002, he was reminded by the Hearing Office Director that he had been
previously told to request official duty time prior to engaging in any
EEO activity. Complainant claimed that the Hearing Office Director
advised him that the policy was to be considered a direct order and,
should it not be adhered to, disciplinary action might result.
The agency investigated the complaint and informed complainant of
his right to request a hearing before an EEOC Administrative Judge.
Complainant did not request a hearing and the agency issued a final
action dated March 7, 2005, finding that no discrimination occurred.
The agency noted that in a memorandum dated January 17, 2001, to the
staff, the agency stated that reasonable time will be allowed for EEO
activities and employees must request official time by use of the SF-71
form. The agency stated that the SF-71 form must contain the EEO case
number assigned by the EEO Counselor, whether the EEO activity is at the
informal or formal stage, what the complainant will be working on, and the
number of hours complainant will be requesting to work on EEO activities.
The agency determined that it articulated legitimate, nondiscriminatory
reasons for the alleged actions. According to the agency, on or about
August 8, 2002, the Hearing Office Director was informed by the EEO
Office that complainant had initiated an EEO complaint. The agency
noted that the Hearing Office Director stated that she was concerned
about complainant's participation in EEO activity without prior approval
during official duty time. The Hearing Office Director stated that she
was under the impression that conducting EEO activity during break time
needed prior approval. The Hearing Office Director stated that when
she was informed that conducting EEO activity during break time did not
require prior approval, she sent complainant an e-mail on September 19,
2002, stating that he did not need prior approval to use his breaks or
lunch periods for EEO activity. The agency determined that management's
articulated, nondiscriminatory reasons far outweighed the evidence
complainant presented that discrimination did occur.
Legal Analysis:
Upon review of the record, we observe that complainant does not claim
that he was denied official time. Rather, complainant claims that he
was subjected to reprisal harassment by virtue of the reminder that
he request official duty time prior to engaging in any EEO activity.
We find that complainant has not shown that he was actually denied
official time. Also, we find that there is no indication that any
agency policy violates our official time regulations as set forth in EEOC
Regulation 29 C.F.R. §1614.605. With regard to the merits of his claim,
complainant has not shown that his claim rises to the level of a hostile
work environment and he has failed to rebut the agency's legitimate,
nondiscriminatory reasons. Therefore, we find that no discrimination
occurred.
The Commission AFFIRMS the agency's final order. | Demos A. Kuchulis v. Social Security Administration
01A53407
June 7, 2006
.
Demos A. Kuchulis,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A53407
Agency No. 03-0041-SSA
DECISION
On October 3, 2002, complainant filed a formal EEO complaint in which he
claimed that the agency subjected him to harassment and a hostile work
environment in reprisal for his previous EEO activity when on August 9,
2002, he was reminded by the Hearing Office Director that he had been
previously told to request official duty time prior to engaging in any
EEO activity. Complainant claimed that the Hearing Office Director
advised him that the policy was to be considered a direct order and,
should it not be adhered to, disciplinary action might result.
The agency investigated the complaint and informed complainant of
his right to request a hearing before an EEOC Administrative Judge.
Complainant did not request a hearing and the agency issued a final
action dated March 7, 2005, finding that no discrimination occurred.
The agency noted that in a memorandum dated January 17, 2001, to the
staff, the agency stated that reasonable time will be allowed for EEO
activities and employees must request official time by use of the SF-71
form. The agency stated that the SF-71 form must contain the EEO case
number assigned by the EEO Counselor, whether the EEO activity is at the
informal or formal stage, what the complainant will be working on, and the
number of hours complainant will be requesting to work on EEO activities.
The agency determined that it articulated legitimate, nondiscriminatory
reasons for the alleged actions. According to the agency, on or about
August 8, 2002, the Hearing Office Director was informed by the EEO
Office that complainant had initiated an EEO complaint. The agency
noted that the Hearing Office Director stated that she was concerned
about complainant's participation in EEO activity without prior approval
during official duty time. The Hearing Office Director stated that she
was under the impression that conducting EEO activity during break time
needed prior approval. The Hearing Office Director stated that when
she was informed that conducting EEO activity during break time did not
require prior approval, she sent complainant an e-mail on September 19,
2002, stating that he did not need prior approval to use his breaks or
lunch periods for EEO activity. The agency determined that management's
articulated, nondiscriminatory reasons far outweighed the evidence
complainant presented that discrimination did occur.
Upon review of the record, we observe that complainant does not claim
that he was denied official time. Rather, complainant claims that he
was subjected to reprisal harassment by virtue of the reminder that
he request official duty time prior to engaging in any EEO activity.
We find that complainant has not shown that he was actually denied
official time. Also, we find that there is no indication that any
agency policy violates our official time regulations as set forth in EEOC
Regulation 29 C.F.R. §1614.605. With regard to the merits of his claim,
complainant has not shown that his claim rises to the level of a hostile
work environment and he has failed to rebut the agency's legitimate,
nondiscriminatory reasons. Therefore, we find that no discrimination
occurred.
The Commission AFFIRMS the agency's final order.
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
June 7, 2006
__________________
Date
| [
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241 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01983064.txt | 01983064.txt | TXT | text/plain | 6,797 | March 18, 1999 | Appeal Number: 01983064
Legal Analysis:
The Commission finds that the agency's decision dated January 30,
1998 dismissing appellant's complaint on the grounds that appellant
failed to timely contact an EEO Counselor is proper pursuant to 29
C.F.R. §1614.107(b). Appellant argues that he attempted to file an EEO
complaint in 1992 and 1993 but that EEO Counselor A refused to process
such a complaint.
EEO Counselor A provided an affidavit in which EEO Counselor A asserted
that although he did meet in December 1992 with appellant, appellant did
not express a desire to start the EEO process. EEO Counselor A asserted
that he explained the EEO process to appellant and the necessity to
commence EEO processing within 45 days of the discriminatory event,
but that appellant did not choose, at that time in 1992, to pursue the
matter through the EEO process. EEO Counselor A denied ever dissuading
appellant from filing a complaint. The Commission finds that appellant's
bare assertion that he was denied the right to start the EEO process
is insufficient, when rebutted by the statements in EEO Counselor A's
affidavit, to show that appellant attempted to commence the EEO process
prior to September 8, 1997. Appellant's initial contact with the intent
of pursuing EEO counseling on September 8, 1997 was more than 45 days
after the alleged discriminatory incidents (lack of accommodation;
rejection of appellant's attempt to accept incentive pay and retire).
Appellant has not provided any persuasive reason for finding that the
agency should be equitably estopped from claiming that appellant failed
to timely contact an EEO Counselor.
Because of our disposition we do not address whether the agency properly
dismissed the complaint on additional grounds.
The agency's decision dismissing the complaint is AFFIRMED. | Jack R. Williams v. Department of the Navy
01983064
March 18, 1999
Jack R. Williams, )
Appellant, )
)
v. ) Appeal No. 01983064
) Agency No. 98-00251-007
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
The Commission finds that the agency's decision dated January 30,
1998 dismissing appellant's complaint on the grounds that appellant
failed to timely contact an EEO Counselor is proper pursuant to 29
C.F.R. §1614.107(b). Appellant argues that he attempted to file an EEO
complaint in 1992 and 1993 but that EEO Counselor A refused to process
such a complaint.
EEO Counselor A provided an affidavit in which EEO Counselor A asserted
that although he did meet in December 1992 with appellant, appellant did
not express a desire to start the EEO process. EEO Counselor A asserted
that he explained the EEO process to appellant and the necessity to
commence EEO processing within 45 days of the discriminatory event,
but that appellant did not choose, at that time in 1992, to pursue the
matter through the EEO process. EEO Counselor A denied ever dissuading
appellant from filing a complaint. The Commission finds that appellant's
bare assertion that he was denied the right to start the EEO process
is insufficient, when rebutted by the statements in EEO Counselor A's
affidavit, to show that appellant attempted to commence the EEO process
prior to September 8, 1997. Appellant's initial contact with the intent
of pursuing EEO counseling on September 8, 1997 was more than 45 days
after the alleged discriminatory incidents (lack of accommodation;
rejection of appellant's attempt to accept incentive pay and retire).
Appellant has not provided any persuasive reason for finding that the
agency should be equitably estopped from claiming that appellant failed
to timely contact an EEO Counselor.
Because of our disposition we do not address whether the agency properly
dismissed the complaint on additional grounds.
The agency's decision dismissing the complaint is AFFIRMED.
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. §l6l4.604(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. 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 (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 18, 1999 Ronnie Blumenthal
DATE Director
Office of Federal Operations | [] | [
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242 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01994864_r.txt | 01994864_r.txt | TXT | text/plain | 6,007 | Magruder Taylor v. United States Postal Service 01994864 March 29, 2001 . Magruder Taylor, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency. | March 29, 2001 | Appeal Number: 01994864
Case Facts:
Legal Analysis:
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely
EEO Counselor contact. Complainant claims that he was discriminated
against on the bases of his color (reddish brown), sex (male), disability
(recovering alcoholic) and in retaliation for prior EEO activity when,
on February 5, 1999, his supervisor told him that he was not allowed on
postal property in Turlock, California.
Complainant did not initiate contact with an EEO Counselor until March 31,
1999, which is beyond the forty-five (45) day limitation period required
by 29 C.F.R. § 1614.105(a)(1). On appeal, complainant notes that he
attempted to contact multiple individuals regarding his supervisor's
order prohibiting him from coming on postal property.
In its final decision, the agency stated that EEO posters were displayed
in various places in the work facility where complainant is employed and
where employees and applicants for employment reasonably could be expected
to see them. According to the agency, EEO posters have been displayed
continuously since January 1995. These posters provided employees with
the time limit requirement as well as contact information for the agency's
EEO Office. A copy of this poster was included in the record.
While a complainant may satisfy the requirement of EEO Counselor
contact by contacting an agency official logically connected with the
EEO process and by exhibiting an intent to begin the EEO process, the
individuals contacted by complainant were not logically connected with
the EEO process. See Allen v. United States Postal Service, EEO Request
No. 05950933 (July 8, 1996). Even assuming that they were logically
connected with the EEO process, complainant did not exhibit any intent
to begin the EEO process prior to contacting the EEO Counselor on March
31, 1999. No persuasive arguments or evidence have been presented by
complainant to warrant an extension of the time limit for initiating
EEO Counselor contact.
The agency's final decision dismissing complainant's complaint is
AFFIRMED. | Magruder Taylor v. United States Postal Service
01994864
March 29, 2001
.
Magruder Taylor,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01994864
Agency No. 4F-956-0069-99
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely
EEO Counselor contact. Complainant claims that he was discriminated
against on the bases of his color (reddish brown), sex (male), disability
(recovering alcoholic) and in retaliation for prior EEO activity when,
on February 5, 1999, his supervisor told him that he was not allowed on
postal property in Turlock, California.
Complainant did not initiate contact with an EEO Counselor until March 31,
1999, which is beyond the forty-five (45) day limitation period required
by 29 C.F.R. § 1614.105(a)(1). On appeal, complainant notes that he
attempted to contact multiple individuals regarding his supervisor's
order prohibiting him from coming on postal property.
In its final decision, the agency stated that EEO posters were displayed
in various places in the work facility where complainant is employed and
where employees and applicants for employment reasonably could be expected
to see them. According to the agency, EEO posters have been displayed
continuously since January 1995. These posters provided employees with
the time limit requirement as well as contact information for the agency's
EEO Office. A copy of this poster was included in the record.
While a complainant may satisfy the requirement of EEO Counselor
contact by contacting an agency official logically connected with the
EEO process and by exhibiting an intent to begin the EEO process, the
individuals contacted by complainant were not logically connected with
the EEO process. See Allen v. United States Postal Service, EEO Request
No. 05950933 (July 8, 1996). Even assuming that they were logically
connected with the EEO process, complainant did not exhibit any intent
to begin the EEO process prior to contacting the EEO Counselor on March
31, 1999. No persuasive arguments or evidence have been presented by
complainant to warrant an extension of the time limit for initiating
EEO Counselor contact.
The agency's final decision dismissing complainant's complaint is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
March 29, 2001
__________________
Date
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243 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a50723.txt | 01a50723.txt | TXT | text/plain | 9,249 | Noel Perez v. Department of Veterans Affairs 01A50723 January 27, 2005 . Noel Perez, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency. | January 27, 2005 | Appeal Number: 01A50723
Case Facts:
Legal Analysis:
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2).<1> In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of race (Asian/Pacific Islander) and national origin
(Philippines) when:
he received a letter of counseling dated September 15, 2003, and a notice
of warning dated September 17, 2003; and,
was removed from his position on December 31, 2003.
The agency dismissed issue 1 for failing to timely contact an EEO
counselor and issue 2 for failing to file a formal complaint within 15
calendar days of receipt of the Notice of Final Interview.
The record reveals that complainant initially contacted an agency
EEO manager raising issues of discrimination on September 25, 2003.
Specifically, complainant stated that he was the victim of discrimination
and cited the letter of counseling and notice of warning among other
issues. The EEO counselor's report indicates that complainant initially
met with an EEO counselor regarding issue 1 on December 12, 2003.
On appeal, complainant's representative stated that she was often
incapable of timely responses due to exposure to environmental
contaminants.
EEOC regulations state that an aggrieved individual must contact an EEO
counselor within 45 days of the alleged discriminatory occurrence. 29
C.F.R. § 1614.105(a)(1). The Commission has adopted a "reasonable
suspicion" standard (as opposed to a "supportive facts" standard) to
determine when the forty-five (45) day limitation period is triggered. See
Howard v. Department of the Navy, EEOC Request No. 05970852 (February
11, 1999). Thus, 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. This time limit may
be extended, however, if the individual was unaware of the time limits,
if he did not know or could not reasonably have known that discrimination
had occurred, if he was prevented from timely contacting a counselor by
circumstances beyond his control, or for any other reasons considered
sufficient by the Commission. 29 C.F.R. § 1614.105(a)(2). In addition,
the 45-day time limit is subject to waiver, estoppel, and equitable
tolling. 29 C.F.R. § 1614.604(c). If complainant fails to contact a
counselor within the 45-day time limit, and does not present arguments
or evidence that would support an extension of this time limit, then
the complaint may be dismissed pursuant to 29 C.F.R. § 1614.107(a)(2).
With respect to issue 1, we find that complainant had a reasonable
suspicion of discrimination on September 15 and 17, 2003, when he was
given a notice of counseling and notice of warning. We find further that,
although complainant contacted the EEO Manager by letter on September
25, 2003, and later spoke with the EEO Manager, an individual logically
connected to the EEO process, he did not exhibit an intent to pursue the
EEO complaint process at that time. 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. See Allen v. United States Postal Service,
EEOC Request No. 05950933 (July 9, 1996). The Commission finds that
complainant did not contact the EEO Manager again and did not initiate
EEO counseling until December 12, 2003, which was beyond the requisite
time period. Complainant's representative failed to submit any medical
documentation showing that she was unable to contact the EEO counselor
between the time she contacted the EEO Manager on September 25, 2003,
and when she contacted the EEO Counselor on December 12, 2003. We find
that complainant and his representative have been unable to show that he
or his representative were prevented from timely contacting a counselor
by circumstances beyond their control.
The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in
pertinent part, that an agency shall dismiss a complaint which fails to
comply with the applicable time limits contained in 29 C.F.R. § 1614.106,
which, in turn, requires the filing of a formal complaint within fifteen
(15) days of receiving a notice of the right to do so.
With respect to issue 2, complainant received his notice of right to
file on February 2, 2004, and his formal complaint was not filed until
February 26, 2004, which is beyond the fifteen (15) day limitation
period. On appeal, complainant has not offered adequate justification to
warrant an extension of the time limit for filing the complaint nor has he
shown that he or his representative were prevented from timely filing the
formal complaint by circumstances beyond their control.
Final Decision:
Accordingly, the agency's final decision dismissing complainant's complaint is AFFIRMED. | Noel Perez v. Department of Veterans Affairs
01A50723
January 27, 2005
.
Noel Perez,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A50723
Agency No. 200N-0654-2004100895
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2).<1> In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of race (Asian/Pacific Islander) and national origin
(Philippines) when:
he received a letter of counseling dated September 15, 2003, and a notice
of warning dated September 17, 2003; and,
was removed from his position on December 31, 2003.
The agency dismissed issue 1 for failing to timely contact an EEO
counselor and issue 2 for failing to file a formal complaint within 15
calendar days of receipt of the Notice of Final Interview.
The record reveals that complainant initially contacted an agency
EEO manager raising issues of discrimination on September 25, 2003.
Specifically, complainant stated that he was the victim of discrimination
and cited the letter of counseling and notice of warning among other
issues. The EEO counselor's report indicates that complainant initially
met with an EEO counselor regarding issue 1 on December 12, 2003.
On appeal, complainant's representative stated that she was often
incapable of timely responses due to exposure to environmental
contaminants.
EEOC regulations state that an aggrieved individual must contact an EEO
counselor within 45 days of the alleged discriminatory occurrence. 29
C.F.R. § 1614.105(a)(1). The Commission has adopted a "reasonable
suspicion" standard (as opposed to a "supportive facts" standard) to
determine when the forty-five (45) day limitation period is triggered. See
Howard v. Department of the Navy, EEOC Request No. 05970852 (February
11, 1999). Thus, 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. This time limit may
be extended, however, if the individual was unaware of the time limits,
if he did not know or could not reasonably have known that discrimination
had occurred, if he was prevented from timely contacting a counselor by
circumstances beyond his control, or for any other reasons considered
sufficient by the Commission. 29 C.F.R. § 1614.105(a)(2). In addition,
the 45-day time limit is subject to waiver, estoppel, and equitable
tolling. 29 C.F.R. § 1614.604(c). If complainant fails to contact a
counselor within the 45-day time limit, and does not present arguments
or evidence that would support an extension of this time limit, then
the complaint may be dismissed pursuant to 29 C.F.R. § 1614.107(a)(2).
With respect to issue 1, we find that complainant had a reasonable
suspicion of discrimination on September 15 and 17, 2003, when he was
given a notice of counseling and notice of warning. We find further that,
although complainant contacted the EEO Manager by letter on September
25, 2003, and later spoke with the EEO Manager, an individual logically
connected to the EEO process, he did not exhibit an intent to pursue the
EEO complaint process at that time. 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. See Allen v. United States Postal Service,
EEOC Request No. 05950933 (July 9, 1996). The Commission finds that
complainant did not contact the EEO Manager again and did not initiate
EEO counseling until December 12, 2003, which was beyond the requisite
time period. Complainant's representative failed to submit any medical
documentation showing that she was unable to contact the EEO counselor
between the time she contacted the EEO Manager on September 25, 2003,
and when she contacted the EEO Counselor on December 12, 2003. We find
that complainant and his representative have been unable to show that he
or his representative were prevented from timely contacting a counselor
by circumstances beyond their control.
The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in
pertinent part, that an agency shall dismiss a complaint which fails to
comply with the applicable time limits contained in 29 C.F.R. § 1614.106,
which, in turn, requires the filing of a formal complaint within fifteen
(15) days of receiving a notice of the right to do so.
With respect to issue 2, complainant received his notice of right to
file on February 2, 2004, and his formal complaint was not filed until
February 26, 2004, which is beyond the fifteen (15) day limitation
period. On appeal, complainant has not offered adequate justification to
warrant an extension of the time limit for filing the complaint nor has he
shown that he or his representative were prevented from timely filing the
formal complaint by circumstances beyond their control. Accordingly, the
agency's final decision dismissing complainant's complaint is AFFIRMED.
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:
January 27, 2005
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations
1 The agency contends that complainant
did not timely file the instant appeal and stated that it attached two
U. S. Postal Service Track and Confirm sheets showing when complainant
received the FAD. However, the agency appeal brief does not contain
any such attachment. Because the agency failed to supply a copy of the
certified mail receipt or any other material capable of establishing
the date that complainant received the final decision, the Commission
presumes that the appeal was filed within thirty (30) calendar days of
the date of complainant's receipt of the final decision.
| [
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"Allen v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996)",
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"29 C.F.R. § 1614.105(a)",
"29 C.F.R. § 1614.604(c)",
"29 C.F.R. § 1614.106",
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244 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a45872.txt | 01a45872.txt | TXT | text/plain | 9,096 | Ervin V. Norwood v. Department of Agriculture 01A45872 December 14, 2004 . Ervin V. Norwood, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, (Farm Service Agency), Agency. | December 14, 2004 | Appeal Number: 01A45872
Case Facts:
Complainant filed a timely appeal with this Commission from a final agency
decision (FAD) dated July 23, 2004, dismissing his formal complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
On April 14, 2004, complainant initiated EEO Counselor contact.
Informal efforts to resolve complainant's concerns were unsuccessful.
In a formal complaint, filed on May 26, 2004, complainant alleged that he
was subjected to discrimination on the basis of race (African-American)
when on November 15, 2003, he was placed in a dead end position, and
the agency refused to provide him with an opportunity to apply for a
higher grade position.
In its July 23, 2004 FAD, the agency dismissed complainant's complaint
pursuant to 29 C.F.R. § 1614.107(a)(2), on the grounds of untimely EEO
Counselor contact. The agency found that complainant's initial EEO
Counselor contact occurred on April 14, 2004, but that complainant had a
reasonable suspicion of unlawful employment discrimination more than 45
days before initiating EEO contact. The agency noted that complainant
was requested to explain the delay in initiating EEO Counselor contact;
and that complainant indicated that he did not initiate EEO contact
until April 14, 2004, because he was not aware that he could pursue the
EEO complaint process until he discussed the issue with other employees
around the state, and that he wanted the officials to be aware of the
issue first. Furthermore, the agency noted that in 2000, the agency
provided EEO web-based training to employees; and that EEO posters
describing the forty-five (45) day limitation period were on display at
complainant's work facility.
The record contains a copy of an affidavit from an agency official wherein
she described the location of the EEO posters on display at the facility
where complainant is employed. The record also contains a copy of the
poster containing the applicable time limit for initiating EEO contact
and addressing the necessity for initiating timely EEO contact.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, 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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The Commission notes in his formal complaint, complainant claimed that the
alleged discriminatory event occurred on November 15, 2003. However,
the record in this case contains a letter prepared by complainant to an
agency EEO Counselor, dated March 31, 2004. Therein, complainant stated
that about three years back, I met with a Director of the Kansas City
Classification Office and a representative with the Equal Employment
Office. We discussed what steps were needed to be taken in order for
me to be upgraded. [emphases added]. Complainant further stated that
there was a follow up conversation with the State Executive Director,
the Administrative Officer, the Kansas City Specialists and EEO Counselor
but that positions continue to be developed, created, and designed for
certain employees. Furthermore, complainant stated that the purpose of
his letter was to make officials in higher-level positions aware of the
problems that African-American employees are confronted with on a regular
basis in the state of Louisiana with the USDA Farm Service Agency.
The Commission has found that because the limitation period for contacting
an EEO Counselor is triggered by the reasonable suspicion standard,
waiting until one has "supporting facts" or "proof" of discrimination
before initiating a complaint can result in untimely Counselor contact.
See Bracken v. United States Postal Service, EEOC Request No. 05900065
(March 29, 1990). The Commission finds that complainant had, or should
have had, a reasonable suspicion of unlawful employment discrimination
more than 45 days prior to his initial EEO Counselor contact. Complainant
failed to provide sufficient justification for extending or tolling the
time limitation.
Final Decision:
Accordingly, the agency's decision dismissing the instant complaint on the grounds of untimely EEO Counselor contact was proper and is AFFIRMED. | Ervin V. Norwood v. Department of Agriculture
01A45872
December 14, 2004
.
Ervin V. Norwood,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
(Farm Service Agency),
Agency.
Appeal No. 01A45872
Agency No. 040503
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision (FAD) dated July 23, 2004, dismissing his formal complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
On April 14, 2004, complainant initiated EEO Counselor contact.
Informal efforts to resolve complainant's concerns were unsuccessful.
In a formal complaint, filed on May 26, 2004, complainant alleged that he
was subjected to discrimination on the basis of race (African-American)
when on November 15, 2003, he was placed in a dead end position, and
the agency refused to provide him with an opportunity to apply for a
higher grade position.
In its July 23, 2004 FAD, the agency dismissed complainant's complaint
pursuant to 29 C.F.R. § 1614.107(a)(2), on the grounds of untimely EEO
Counselor contact. The agency found that complainant's initial EEO
Counselor contact occurred on April 14, 2004, but that complainant had a
reasonable suspicion of unlawful employment discrimination more than 45
days before initiating EEO contact. The agency noted that complainant
was requested to explain the delay in initiating EEO Counselor contact;
and that complainant indicated that he did not initiate EEO contact
until April 14, 2004, because he was not aware that he could pursue the
EEO complaint process until he discussed the issue with other employees
around the state, and that he wanted the officials to be aware of the
issue first. Furthermore, the agency noted that in 2000, the agency
provided EEO web-based training to employees; and that EEO posters
describing the forty-five (45) day limitation period were on display at
complainant's work facility.
The record contains a copy of an affidavit from an agency official wherein
she described the location of the EEO posters on display at the facility
where complainant is employed. The record also contains a copy of the
poster containing the applicable time limit for initiating EEO contact
and addressing the necessity for initiating timely EEO contact.
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, 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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The Commission notes in his formal complaint, complainant claimed that the
alleged discriminatory event occurred on November 15, 2003. However,
the record in this case contains a letter prepared by complainant to an
agency EEO Counselor, dated March 31, 2004. Therein, complainant stated
that about three years back, I met with a Director of the Kansas City
Classification Office and a representative with the Equal Employment
Office. We discussed what steps were needed to be taken in order for
me to be upgraded. [emphases added]. Complainant further stated that
there was a follow up conversation with the State Executive Director,
the Administrative Officer, the Kansas City Specialists and EEO Counselor
but that positions continue to be developed, created, and designed for
certain employees. Furthermore, complainant stated that the purpose of
his letter was to make officials in higher-level positions aware of the
problems that African-American employees are confronted with on a regular
basis in the state of Louisiana with the USDA Farm Service Agency.
The Commission has found that because the limitation period for contacting
an EEO Counselor is triggered by the reasonable suspicion standard,
waiting until one has "supporting facts" or "proof" of discrimination
before initiating a complaint can result in untimely Counselor contact.
See Bracken v. United States Postal Service, EEOC Request No. 05900065
(March 29, 1990). The Commission finds that complainant had, or should
have had, a reasonable suspicion of unlawful employment discrimination
more than 45 days prior to his initial EEO Counselor contact. Complainant
failed to provide sufficient justification for extending or tolling the
time limitation.
Accordingly, the agency's decision dismissing the instant complaint on
the grounds of untimely EEO Counselor contact was proper and is AFFIRMED.
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 14, 2004
__________________
Date
| [
"Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)",
"Bracken v. United States Postal Service, EEOC Request No. 05900065 (March 29, 1990)",
"29 C.F.R. § 1614.107(a)",
"29 C.F.R. § 1614.105(a)",
"29 C.F.R. § 1614.405",
"29 C.F.R. § 1614.604",
"29 C.F.R. § 1614.604(c)",
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245 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120152489.txt | 0120152489.txt | TXT | text/plain | 8,611 | Kristle L.,1 Complainant, v. Eric Fanning, Acting Secretary, Department of the Army, Agency. | July 6, 2014 | Appeal Number: 0120152489
Background:
At the time of events giving rise to this complaint, Complainant worked as a Licensed Practical Nurse at the Agency's Fort Stewart facility in Georgia.
On May 26, 2015, Complainant filed a formal complaint alleging that she was discriminated against based on reprisal for her prior protected equal employment opportunity (EEO) activity under an EEO statute that was unspecified in the record when she was forced to resign effective January 10, 2015.
In December 2014, an Agency Health Insurance Portability and Accountability Act (HIPAA) Privacy Officer determined that Complainant violated HIPAA, and recommended that she be terminated. On or about December 16, 2014, Complainant consulted with a Union Representative, who after looking into things advised Complainant that it would be in her best interest to resign rather than be terminated. By letter dated December 22, 2014, Complainant resigned effective January 10, 2015.
The Agency dismissed the complaint for failure to timely initiate EEO counseling. It reasoned the Complainant initiated contact with an Agency EEO Manager on April 1, 2015, beyond the 45 calendar day time limit to do so.
Legal Analysis:
The Commission has consistently held that the utilization of alternative agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO counselor. See Ellis v. United States Postal Service, EEOC Appeal No. 01992093 (November 29, 2000).
Final Decision:
Accordingly, the FAD is AFFIRMED. | Kristle L.,1
Complainant,
v.
Eric Fanning,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120152489
Agency No. ARSTEWART15APR01578
DECISION
On July 6, 2014, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated June 4, 2014, dismissing her complaint of unlawful employment discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Licensed Practical Nurse at the Agency's Fort Stewart facility in Georgia.
On May 26, 2015, Complainant filed a formal complaint alleging that she was discriminated against based on reprisal for her prior protected equal employment opportunity (EEO) activity under an EEO statute that was unspecified in the record when she was forced to resign effective January 10, 2015.
In December 2014, an Agency Health Insurance Portability and Accountability Act (HIPAA) Privacy Officer determined that Complainant violated HIPAA, and recommended that she be terminated. On or about December 16, 2014, Complainant consulted with a Union Representative, who after looking into things advised Complainant that it would be in her best interest to resign rather than be terminated. By letter dated December 22, 2014, Complainant resigned effective January 10, 2015.
The Agency dismissed the complaint for failure to timely initiate EEO counseling. It reasoned the Complainant initiated contact with an Agency EEO Manager on April 1, 2015, beyond the 45 calendar day time limit to do so.
ANALYSIS AND FINDINGS
An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. § 1614.105(a)(1) & .107(a)(2).
On appeal, Complainant argues that after submitting her letter of resignation on December 22, 2014, she sought guidance, and was "passed along" to the EEO Manager at the end of March or beginning of April 2015. She indicates that she contacted the Garrison Commander, then a Brigadier General who served as the Deputy Commanding General for the 3rd Infantry Division, Fort Stewart, and then another Brigadier General who served as the Commanding General of the Southern Regional Medical Command.
Complainant submits email correspondence she had with both Brigadier Generals. In an email to the first Brigadier General in early February 2015, Complainant requested a meeting with him concerning the alleged request she resign, and wrote that she was planning on filing an EEO complaint. In an email to the second Brigadier General in early March 2015, Complainant asked that she look into the alleged request that she resign, and asked her to respond since she needed to go head and file an EEO reprisal complaint. Complainant wrote that she had a previous open EEO case. In a response, the second Brigadier General indicated she would look into things, and if Complainant had a filing deadline she needed to meet, then to meet it. On March 6, 2015, this Brigadier General wrote Complainant that she should feel free to contact the EEO Manager, and provided contact information. Complainant submits emails showing she made such contact by March 30, 2015.
In opposition to the appeal, the Agency argues in part that Complainant was aware of the 45 calendar day time limit since in March 2014 she received her EEO rights which included this time limit in connection with her prior EEO case.
Complainant's contacts with Garrison Commander and two Brigadier Generals did not constitute EEO contact. In its FAD, the Agency found that Complainant initiated EEO contact on April 1, 2015. On appeal, Complainant indicates that she made the contact in late March or early April 2015. As the effective date of her resignation was January 10, 2015, initiating EEO contact in late March 2015 was beyond the 45 calendar day time limit. Complainant has not submitted adequate justification for extending the time limit, including has failed to show that she was no familiar with the EEO counseling process or its deadlines. The Commission has consistently held that the utilization of alternative agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO counselor. See Ellis v. United States Postal Service, EEOC Appeal No. 01992093 (November 29, 2000).
Accordingly, the FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 tends 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), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
December 9, 2015
__________________
Date
------------------------------------------------------------
------------------------------------------------------------
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246 | https://www.eeoc.gov/sites/default/files/decisions/2023_02_03/2021003818.pdf | 2021003818.pdf | PDF | application/pdf | 16,683 | Jimmy C.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. | June 22, 2021 | Appeal Number: 2021003818
Background:
During the period at issue, Complainant worked as a Diagnostic Radiologist, Grade GS-15, in
the Medical Imaging Division of the Agency’s Medical Center in Milwaukee, Wi sconsin. In
2013, Complainant began working at the medical center as fee -based Radiologist. Since 2015,
the Agency has employed Complainant part- time. During the relevant time frame, Complainant’s
direct supervisor was Division Manager for Medical Imaging. Complainant’s second- level
supervisor was the medical center’s Chief of Staff. On February 22, 2020, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him based on disability when:
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
2 2021003818
1) On dates not specified, tha t occurred during processing of Complainant's reasonable
accommodation request, the Agency disclosed his medical information to individuals
who did not have a need to know; and
2) Since February 20, 2020, Complainant has been denied official EEO time to wor k on his
complaint.
After its investigation into the complaint, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). When Complainant did not re quest a hearing within the time frame
provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b), finding no discrimination was established .
The instant appeal followed. On appeal, Complainant argues that his Division Director and the
medical center’s Local Reasonable Accommodation Coordinator (LRAC) sent emails over years which unnecessarily disclosed his protected health information to other e mployees who had no
official role in his request for a disability accommodation. Specifically, Complainant questions the reason that the Radiology Department’s administrative officer was included on emails concerning Complainant’s disability accommodation request. Complainant asserts that that his departmental admi nistrative officer did not need to know about his disability. Complain ant also
asserted that the administrative officer and many others, who Agency management had included on emails that discus sed his disability, had neither training nor authority which w as relevant to
processing of reasonable accommodation requests. Regarding his official time c laim, Complainant asserts that he needed extra time as a pro se party
to prepare for depositions. Complainant stated that the Division Manager had excessively circumscribed what limited official EEO time was granted. Specifically, Complainant states that the Division Manager made Complainant perform regular duties until the exact beginning and after the precise ending of the EEO deposition. In addition to tim e to prepare for depositions,
Complainant argues that he needed additional time to help the court reporter make arrangements for the room where depositions for his case were taken. Complainant states that the Division Director’s strict restrictions on off icial EEO forced him to use his off -duty time to attend to his
EEO case.
Legal Analysis:
the Commission’s website.
2 2021003818
1) On dates not specified, tha t occurred during processing of Complainant's reasonable
accommodation request, the Agency disclosed his medical information to individuals
who did not have a need to know; and
2) Since February 20, 2020, Complainant has been denied official EEO time to wor k on his
complaint.
After its investigation into the complaint, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). When Complainant did not re quest a hearing within the time frame
provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b), finding no discrimination was established .
The instant appeal followed. On appeal, Complainant argues that his Division Director and the
medical center’s Local Reasonable Accommodation Coordinator (LRAC) sent emails over years which unnecessarily disclosed his protected health information to other e mployees who had no
official role in his request for a disability accommodation. Specifically, Complainant questions the reason that the Radiology Department’s administrative officer was included on emails concerning Complainant’s disability accommodation request. Complainant asserts that that his departmental admi nistrative officer did not need to know about his disability. Complain ant also
asserted that the administrative officer and many others, who Agency management had included on emails that discus sed his disability, had neither training nor authority which w as relevant to
processing of reasonable accommodation requests. Regarding his official time c laim, Complainant asserts that he needed extra time as a pro se party
to prepare for depositions. Complainant stated that the Division Manager had excessively circumscribed what limited official EEO time was granted. Specifically, Complainant states that the Division Manager made Complainant perform regular duties until the exact beginning and after the precise ending of the EEO deposition. In addition to tim e to prepare for depositions,
Complainant argues that he needed additional time to help the court reporter make arrangements for the room where depositions for his case were taken. Complainant states that the Division Director’s strict restrictions on off icial EEO forced him to use his off -duty time to attend to his
EEO case.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision i s subject to de novo review by the C ommission. 29 C.F.R.
§ 1614.405(a). EEO Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug.
5, 2015) (explaining that the de novo standard of review “requires that the Commission examine
the record without regard to the factual and l egal determinations of the previous decision maker,”
and that EEOC “review the documents, statements, and testimony of record, including any
3 2021003818
timely and relevant submissions of the parties, and . . . issue its decision ba sed on the
Commission’s own assessme nt of the record and its interpretation of the law”).
Claim 1 – Rehabilitation Act Confidentiality
Title I of the Americans with Disabilities Act of 1990 (ADA), as applied to the Rehabilitation Act pursuant to 29 C.F.R. § 1614.203(b) , require that inform ation on the medical condition or
history of an applicant or employee must be maintained on separate forms and in separate files and must be treated as confidential medical records . There are five exceptions to the general r ule:
i. Supervisors and managers m ay be told about necessary medical restrictions on
work or duties and about necessary accommodations .
ii. First aid and safety personnel may be told medical information if a disability might require emergency treatment.
iii. Government officials investigating Rehabilitation Act compliance must be given relevant medical information on request in accordance with 42 U.S.C. §§ 12112(d)(3)(B), 12112(4)(C); 29 C.F.R. § 1630.14; EEOC Enforcement
Guidance: Reasonable Accommodation and Undue Ha rdship under the ADA ,
Ofc. of Legal Counsel Control No. EOC -CVG- 2003- 1, at Question 42 and at
Footnote 111 (Oct. 17, 2002) .
iv. Employers may disclose medical information to workers' compensation offices, state injury funds, workers' compensation insurance carriers, and to health car e
professionals when seeking advice in making reasonable accommodation determinations;
v. Employe rs may use medical information for insurance purposes. See EEOC
Enforcement Guidance on Disability- Related Inquiries and Medical Examinations
of Employees unde r the Americans with Disabilities Act (ADA), OLC Control
No. EEOCCVG- 2000- 4, at footnote 10 (Jul y 26, 2000).
29 C.F.R. §§ 1630.13, 1630.14.
The Rehabilitation Act requirement of medical confidentiality is not limited to individuals found to have disabilities. Hampton v. U.S. States Postal Serv., EEOC Appeal No . 01A00132 (Apr. 13,
2000); 29 C.F.R. § 1614.203(b). In interpreting this requirement, the Commission has found that
Agency managers or supervisors may be informed regarding a complainant’s work restrictions or accommodations. Velva B. v. U.S. Postal Serv., EEOC Appeal Nos. 0720160006- 07 (Sept.
25,2017), req. for recon. den. EEOC Request Nos. 2018009405, 201800945 (Mar. 9, 2018).
4 2021003818
Here, we have carefully reviewed the emails wherein Complainant has accused managers and
supervisors of violating the medical confidentiality required under Rehabilitation Act by courtesy -copying administrative assistants and other staff whose roles he alleges were tangen tial
to the Agency’s decision whether to grant or deny Complainant’s accommodation requests. The
Agency explai ned that the Administrative Officer for the Radiology Division was included on
email strings concerning Complainant’s disability accommodation r equest for a modified
workspace because the Administrative Officer’s duties included assigning office spaces.
Concerning Complainant’s request for a modified protective lead skirt, the Agency explained
that management had included facility management empl oyees in order to confirm that it was
feasible for Complainant to use a lead skirt on a wheeled cart in the exam ination room. We
concur with the Agency in finding that Complainant’s medical confidentiality was not violated. Although the emails at issue c ontained communications regarding possible approval or
disapproval and regarding the interactive process underlying Complainant's request, this record is devoid of emails which divulged Complainant's medical records or included confidential medical inform ation concerning Complainant's disability. Complainant has not demonstrated
that the Agency improperly disclosed or accessed his confidential medical information in
violation of the Rehabilitation Act. Nina P. V. Soc. Sec. Admin., EEOC Appeal No.
2021002044 (Sept. 15, 2022); Margueritte L. v. Dep’t of Justice , EEOC Appeal No. 2021001648
(Sept. 14, 2022) (finding rehabilitation act confidentiality was not violated when a supervisor emailed and instructed the injured employee to provide medical records per sonnel with a staff
injury report.)
Claim 2 – Official EEO Time
Claim 2, Complainant has additionally alleged a separately processable claim of denial of required official EEO time in violation of 29 C.F.R. § 1614.605(d)(2). Edwards v. U.S. Postal
Serv. , EEOC Request No. 05950708 (Oct. 31, 1996); agency request for recon. Denied , EEOC
Request No 05960179 (Dec. 23, 1996). Without finding discrimination, we are authorized to remedy a violation of the official EEO time regulation, 29 C.F.R. § 1614.605(b)(2) . Brandon v.
U.S. Postal Serv., EEOC Appeal No. 0120080803 (July 24, 2009) (upholding an AJ’s decision
requiring the agency to reimburse 10.5 hours of paid leave to complainant for official EEO time). EEOC Regulation 29 C.F.R. § 1614.605(b) provides that the Agency must grant Complainant a reasonable amount of official time to prepare his EEO complaint and for him to respond to requests for information from the Agency and EEOC. Therefore, our focus in Claim 2 is not on discriminatory motivation, but wheth er the Agency can reasonably justify denying the amount of
official EEO time that Complainant requested. Moorma n, Jr. v. U.S. Postal Serv., EEOC Appeal
No. 0120123527 (Jan. 31, 2013). Regarding Claim 2, we find no impropriety in the Agency’s decision t o grant Complainant only
one hour of official EEO time as opposed to the eight hours that he requested. Complai nant had
requested eight hours of official EEO time for the stated purpose of a deposition. Agency management reasonably determined that a dep osition woul d require only an hour of official EEO
time within Complainant’s duty shift. Moreover, the record did not indicate that Complainant attempted to retroactively request additional hours to account for a lack of official EEO time.
5 2021003818
In a similar c ase, we have permitted management to reduce official EEO time where it
articulated a valid reason for doing so. F or example, in Yun C. V. Dep’t of Justice , EEOC
Appeal No. 0120181140 (Nov. 16, 2018), a the first -line supervisor initially granted a
complai nant’s request for eight hours of official EEO time. But then, we held that it was
appropriate for the second- line supervisor to reduce the official EEO time based on the second -
line supervisor’s individual assessment that only four hours of official EEO time was needed for
the EEO activity that was described in that complainant’s request. It was noted that if the reduced grant of official EEO time had proved insufficient, then it may have been possible for
the complainant to request additional official E EO time to be applied retroactively. In neither
case did either complainant claim that their EEO activity actually required more official EEO time than that which they had been authorized. | Jimmy C.,1
Complainant,
v.
Denis R. McDonough,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 2021003818
Agency No. 200J-0695-2020102050
DECISION
On June 22, 2021, Complainant filed an appeal with the Equal Employment Opportunity Com mission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
May 24, 2021, final decision concerning his equal employment opportunity (EEO) compl aint
alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Diagnostic Radiologist, Grade GS-15, in
the Medical Imaging Division of the Agency’s Medical Center in Milwaukee, Wi sconsin. In
2013, Complainant began working at the medical center as fee -based Radiologist. Since 2015,
the Agency has employed Complainant part- time. During the relevant time frame, Complainant’s
direct supervisor was Division Manager for Medical Imaging. Complainant’s second- level
supervisor was the medical center’s Chief of Staff. On February 22, 2020, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him based on disability when:
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
2 2021003818
1) On dates not specified, tha t occurred during processing of Complainant's reasonable
accommodation request, the Agency disclosed his medical information to individuals
who did not have a need to know; and
2) Since February 20, 2020, Complainant has been denied official EEO time to wor k on his
complaint.
After its investigation into the complaint, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). When Complainant did not re quest a hearing within the time frame
provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b), finding no discrimination was established .
The instant appeal followed. On appeal, Complainant argues that his Division Director and the
medical center’s Local Reasonable Accommodation Coordinator (LRAC) sent emails over years which unnecessarily disclosed his protected health information to other e mployees who had no
official role in his request for a disability accommodation. Specifically, Complainant questions the reason that the Radiology Department’s administrative officer was included on emails concerning Complainant’s disability accommodation request. Complainant asserts that that his departmental admi nistrative officer did not need to know about his disability. Complain ant also
asserted that the administrative officer and many others, who Agency management had included on emails that discus sed his disability, had neither training nor authority which w as relevant to
processing of reasonable accommodation requests. Regarding his official time c laim, Complainant asserts that he needed extra time as a pro se party
to prepare for depositions. Complainant stated that the Division Manager had excessively circumscribed what limited official EEO time was granted. Specifically, Complainant states that the Division Manager made Complainant perform regular duties until the exact beginning and after the precise ending of the EEO deposition. In addition to tim e to prepare for depositions,
Complainant argues that he needed additional time to help the court reporter make arrangements for the room where depositions for his case were taken. Complainant states that the Division Director’s strict restrictions on off icial EEO forced him to use his off -duty time to attend to his
EEO case.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision i s subject to de novo review by the C ommission. 29 C.F.R.
§ 1614.405(a). EEO Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug.
5, 2015) (explaining that the de novo standard of review “requires that the Commission examine
the record without regard to the factual and l egal determinations of the previous decision maker,”
and that EEOC “review the documents, statements, and testimony of record, including any
3 2021003818
timely and relevant submissions of the parties, and . . . issue its decision ba sed on the
Commission’s own assessme nt of the record and its interpretation of the law”).
Claim 1 – Rehabilitation Act Confidentiality
Title I of the Americans with Disabilities Act of 1990 (ADA), as applied to the Rehabilitation Act pursuant to 29 C.F.R. § 1614.203(b) , require that inform ation on the medical condition or
history of an applicant or employee must be maintained on separate forms and in separate files and must be treated as confidential medical records . There are five exceptions to the general r ule:
i. Supervisors and managers m ay be told about necessary medical restrictions on
work or duties and about necessary accommodations .
ii. First aid and safety personnel may be told medical information if a disability might require emergency treatment.
iii. Government officials investigating Rehabilitation Act compliance must be given relevant medical information on request in accordance with 42 U.S.C. §§ 12112(d)(3)(B), 12112(4)(C); 29 C.F.R. § 1630.14; EEOC Enforcement
Guidance: Reasonable Accommodation and Undue Ha rdship under the ADA ,
Ofc. of Legal Counsel Control No. EOC -CVG- 2003- 1, at Question 42 and at
Footnote 111 (Oct. 17, 2002) .
iv. Employers may disclose medical information to workers' compensation offices, state injury funds, workers' compensation insurance carriers, and to health car e
professionals when seeking advice in making reasonable accommodation determinations;
v. Employe rs may use medical information for insurance purposes. See EEOC
Enforcement Guidance on Disability- Related Inquiries and Medical Examinations
of Employees unde r the Americans with Disabilities Act (ADA), OLC Control
No. EEOCCVG- 2000- 4, at footnote 10 (Jul y 26, 2000).
29 C.F.R. §§ 1630.13, 1630.14.
The Rehabilitation Act requirement of medical confidentiality is not limited to individuals found to have disabilities. Hampton v. U.S. States Postal Serv., EEOC Appeal No . 01A00132 (Apr. 13,
2000); 29 C.F.R. § 1614.203(b). In interpreting this requirement, the Commission has found that
Agency managers or supervisors may be informed regarding a complainant’s work restrictions or accommodations. Velva B. v. U.S. Postal Serv., EEOC Appeal Nos. 0720160006- 07 (Sept.
25,2017), req. for recon. den. EEOC Request Nos. 2018009405, 201800945 (Mar. 9, 2018).
4 2021003818
Here, we have carefully reviewed the emails wherein Complainant has accused managers and
supervisors of violating the medical confidentiality required under Rehabilitation Act by courtesy -copying administrative assistants and other staff whose roles he alleges were tangen tial
to the Agency’s decision whether to grant or deny Complainant’s accommodation requests. The
Agency explai ned that the Administrative Officer for the Radiology Division was included on
email strings concerning Complainant’s disability accommodation r equest for a modified
workspace because the Administrative Officer’s duties included assigning office spaces.
Concerning Complainant’s request for a modified protective lead skirt, the Agency explained
that management had included facility management empl oyees in order to confirm that it was
feasible for Complainant to use a lead skirt on a wheeled cart in the exam ination room. We
concur with the Agency in finding that Complainant’s medical confidentiality was not violated. Although the emails at issue c ontained communications regarding possible approval or
disapproval and regarding the interactive process underlying Complainant's request, this record is devoid of emails which divulged Complainant's medical records or included confidential medical inform ation concerning Complainant's disability. Complainant has not demonstrated
that the Agency improperly disclosed or accessed his confidential medical information in
violation of the Rehabilitation Act. Nina P. V. Soc. Sec. Admin., EEOC Appeal No.
2021002044 (Sept. 15, 2022); Margueritte L. v. Dep’t of Justice , EEOC Appeal No. 2021001648
(Sept. 14, 2022) (finding rehabilitation act confidentiality was not violated when a supervisor emailed and instructed the injured employee to provide medical records per sonnel with a staff
injury report.)
Claim 2 – Official EEO Time
Claim 2, Complainant has additionally alleged a separately processable claim of denial of required official EEO time in violation of 29 C.F.R. § 1614.605(d)(2). Edwards v. U.S. Postal
Serv. , EEOC Request No. 05950708 (Oct. 31, 1996); agency request for recon. Denied , EEOC
Request No 05960179 (Dec. 23, 1996). Without finding discrimination, we are authorized to remedy a violation of the official EEO time regulation, 29 C.F.R. § 1614.605(b)(2) . Brandon v.
U.S. Postal Serv., EEOC Appeal No. 0120080803 (July 24, 2009) (upholding an AJ’s decision
requiring the agency to reimburse 10.5 hours of paid leave to complainant for official EEO time). EEOC Regulation 29 C.F.R. § 1614.605(b) provides that the Agency must grant Complainant a reasonable amount of official time to prepare his EEO complaint and for him to respond to requests for information from the Agency and EEOC. Therefore, our focus in Claim 2 is not on discriminatory motivation, but wheth er the Agency can reasonably justify denying the amount of
official EEO time that Complainant requested. Moorma n, Jr. v. U.S. Postal Serv., EEOC Appeal
No. 0120123527 (Jan. 31, 2013). Regarding Claim 2, we find no impropriety in the Agency’s decision t o grant Complainant only
one hour of official EEO time as opposed to the eight hours that he requested. Complai nant had
requested eight hours of official EEO time for the stated purpose of a deposition. Agency management reasonably determined that a dep osition woul d require only an hour of official EEO
time within Complainant’s duty shift. Moreover, the record did not indicate that Complainant attempted to retroactively request additional hours to account for a lack of official EEO time.
5 2021003818
In a similar c ase, we have permitted management to reduce official EEO time where it
articulated a valid reason for doing so. F or example, in Yun C. V. Dep’t of Justice , EEOC
Appeal No. 0120181140 (Nov. 16, 2018), a the first -line supervisor initially granted a
complai nant’s request for eight hours of official EEO time. But then, we held that it was
appropriate for the second- line supervisor to reduce the official EEO time based on the second -
line supervisor’s individual assessment that only four hours of official EEO time was needed for
the EEO activity that was described in that complainant’s request. It was noted that if the reduced grant of official EEO time had proved insufficient, then it may have been possible for
the complainant to request additional official E EO time to be applied retroactively. In neither
case did either complainant claim that their EEO activity actually required more official EEO time than that which they had been authorized.
CONCLUSION
Based on a careful review of the record and con tentions on appeal, the Commission AFFIRMS
the Agency's final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0920)
The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that:
1. The appellat e decision involved a clearly erroneous inter pretation 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 for reconsideration must be filed with EEOC’s O ffice of Federal Operations (OFO)
within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration . A pa rty shall have twenty
(20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Manage ment Directive for 29 C.F.R. Part 1614 (EEO MD -110), at Chap. 9 § VII.B
(Aug. 5, 2015).
Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx
6 2021003818
Alternatively, Complainant can submit his or her request and arguments to the Director, Office
of Federal Operations, Equal Employme nt Opportunity Commission, via re gular mail addressed
to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE,
Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to
reconsider shall be d eemed timely filed if OFO receive s it by mail within five days of the
expiration of the applicable filing period. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s
Federal Sector EEO Por tal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request
and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required.
Failur e to file within the 30 -day time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documenta tion must be submitted together w ith the 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 (S0610)
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 compla int the person who is the officia l 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 organiz ation, 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of reque sts.
7 2021003818
Such requests do not alter the time limits for filing a civil action (please read the paragraph titled
Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
December 22, 2022
Date | [
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"29 C.F.R. § 1614.403(a)",
"29 C.F.R. § 1614.108(f)",
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247 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01982513.txt | 01982513.txt | TXT | text/plain | 14,259 | May 28, 1999 | Appeal Number: 01982513
Background:
Appellant filed a formal complaint on November 6, 1997, which he amended
on December 15, 1997, alleging discrimination on the bases of sex (male),
physical disability (back injury), mental disability (unspecified)
and reprisal (whistle-blower activity). The agency characterized
appellant's allegations as he was discriminated against when (1) from
July 14, 1988 onward, he was subjected to a history of discrimination,
including slander, denial of annual leave, unfair appraisals, denial of
a transfer request and lack of recognition, ending in his termination
on February 26, 1996, and (2) he was discriminated against based on
fabrications in correspondence to the Office of Workers' Compensation
Programs (OWCP) and the Chief of Engineers.
In its final agency decision, the agency dismissed allegation 1 of the
complaint for untimely contact with an EEO Counselor in that appellant
had not contacted the Counselor within the 45 day limitation period.
Appellant's first contact with the EEO office was on July 12, 1996.
It dismissed allegation 2 on the grounds that appellant had raised a
matter that had not been brought to the attention of the EEO counselor.
This appeal followed.
On appeal, appellant presented several arguments as to why his complaint
should be regarded as timely. He argued that he had tried to contact the
agency concerning his complaint and that his complaint was "ultimately
accepted and investigated" by the agency. He claimed he was not aware of
the 45 day time limitation to contact an EEO Counselor. Appellant also
claimed that he was prevented by circumstances beyond his control from
contacting an EEO Counselor within the 45 days in that he had tried
to contact the Counselor by telephone and received no response to his
inquiries. Finally, appellant argued that the 45 day time limit should be
extended in his case because of the "significant difficulties he faced
in submitting his pro se complaint of mental and physical disability
discrimination."
Legal Analysis:
EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO Counselor within 45 days of the
date of the matter alleged to be discriminatory or within 45 days of the
effective date of the personnel action. The agency sent a certified
letter to appellant informing him of his termination on February
26, 1996, which was signed for by appellant's spouse on February 29,
1996. (Appellant argued that he did not receive the termination notice
until March 6, 1996 but offers no proof of that receipt date.) Calculating
the 45 day limitation period from the receipt of the letter on February
29, 1996, the last day to have timely contacted an EEO Counselor would
have been April 14, 1996, a Sunday. The time limitation is extended
to the next business day if the last day to file the appeal falls on a
weekend or holiday. See 29 C.F.R. §1614.604. Therefore, appellant's
last day to timely contact the EEO counselor was Monday, April 15, 1996.
According to appellant's appeal statement, he tried to contact the EEO
Counselor by phone on April 16, 1996, April 19, 1996 and April 24, 1996<1>
and received no response to his calls. Each of these attempts were
beyond the 45 day limitation period. Appellant's actual first contact
with the EEO office occurred on July 12, 1996, well past the 45 day
limitation period. Appellant had been absent from the workplace from
May 1995, until his termination on February 26, 1996, therefore, none
of the other alleged incidents of discrimination at the workplace could
have taken place in the 45 day period preceding appellant's EEO contact.
Appellant claims that his mental impairment prevented him from contacting
the EEO counselor in a timely manner and that he "acted as quickly
as possible under the circumstances." The Courts have held that a
complainant's mental condition may justify tolling the limitation
period, if the impairment renders the complainant incompetent and
incapable of handling his own affairs or comprehending his legal rights.
Speiser v. Department of Health & Human Services, 670 F. Supp 380,
(D.D.C. 1986), aff'd without opinion, 818 F.2d 95 (D.C. Cir. 1987).
Merely suffering from impaired judgement is not sufficient to toll the
limitation period, and appellant has presented insufficient evidence to
support a finding that he was incapable of handling his own affairs during
the 45 day limitation period. Thompson v. Department of Agriculture,
EEOC Request No. 05971092 (July 3, 1997), Miller v. Department of the
Air Force, EEOC Request No. 05950888 (December 2, 1996). The Commission
finds that appellant has failed to submit adequate justification for
tolling the time limitation on this ground.
EEOC Regulation 29 C.F.R. §1614.105(a)(2) provides that the agency or the
Commission shall extend the 45 day time limit when the complainant shows
he or she was not notified of the time limits and was not otherwise
aware of them. It is the Commission's policy that constructive
knowledge of the rights and obligations under Title VII will be imputed
to a complainant where the agency has fulfilled its statutory duty of
conspicuously posting EEO posters informing employees of their rights.
See Piccone v. U.S. Postal Service, EEOC Request No. 05950678 (April 11,
1996) citing Brown v. Department of Commerce, EEOC Request No. 05890978
(January 10, 1990). However, the agency has the burden of producing
sufficient evidence to support its contention that it fulfilled its
statutory duty of conspicuously posting EEO information or that it
otherwise notified the complainant of his or her rights. In addition,
the Commission has found that constructive knowledge will not be imputed
to a complainant without specific evidence that the posters contained
notice of the time limitation for contacting an EEO Counselor. Piccone
citing Pride v. U.S. Postal Service, EEOC Request No. 05930134 (August
19, 1993).
Appellant claimed on appeal that he knew EEO posters were posted on a
bulletin board two floors above his workplace, and that it had the names,
addresses and phone numbers of the EEO Counselors on it, but claimed
that there was no information as to time limits for filing complaints.
The agency provided, with its response to appellant's appeal, a copy
of the EEO poster on display next to the lunchroom at appellant's
workplace. The poster's contents include the names, pictures, addresses
and phone numbers of the EEO Counselors and the EEO Staff, as well as
information about the time limitations for contacting an EEO Counselor
and the requirement that informal counseling be undertaken before a
formal complaint can be filed. The poster was last revised in October
1989 and still has the time limit from 29 C.F.R. §1613 that specifies
a complainant has 30 days from the date of the discriminatory event to
contact a Counselor. The agency argued that this inaccuracy does not
prejudice appellant because had he relied on the time limit in the poster
he would have filed in a timely manner. The Commission agrees. Therefore,
the agency properly dismissed allegation 1 for untimely contact with an
EEO Counselor.<2>
29 C.F.R. §1614.107(b) provides that a complaint or a portion thereof
shall be dismissed if it raises a matter that has not been brought to the
attention of a Counselor and is not like or related to a matter that has
been brought to the attention of a Counselor. Appellant also alleged, in
his amended complaint on December 15, 1997, that there were fabrications
in correspondence to OWCP and the Chief of Engineers. We note that,
according to the EEO Counselor's report, this matter was not brought
to the Counselor's attention, and is clearly not like any other issue
raised during counseling. On appeal, appellant did not put forth any
arguments to show otherwise. Therefore, we find that this allegation
was properly dismissed.
Final Decision:
Accordingly, the appeal is timely (see 29 C.F.R. §1614.402(a)), and is accepted in accordance with EEOC Order No. 960, as amended. ISSUE PRESENTED The issue on appeal is whether the agency properly dismissed appellant's complaint for untimely contact with an EEO Counselor and for raising an issue that had not been counseled during the EEO process. BACKGROUND Appellant filed a formal complaint on November 6, 1997, which he amended on December 15, 1997, alleging discrimination on the bases of sex (male), physical disability (back injury), mental disability (unspecified) and reprisal (whistle-blower activity). The agency characterized appellant's allegations as he was discriminated against when (1) from July 14, 1988 onward, he was subjected to a history of discrimination, including slander, denial of annual leave, unfair appraisals, denial of a transfer request and lack of recognition, ending in his termination on February 26, 1996, and (2) he was discriminated against based on fabrications in correspondence to the Office of Workers' Compensation Programs (OWCP) and the Chief of Engineers. In its final agency decision, the agency dismissed allegation 1 of the complaint for untimely contact with an EEO Counselor in that appellant had not contacted the Counselor within the 45 day limitation period. Appellant's first contact with the EEO office was on July 12, 1996. It dismissed allegation 2 on the grounds that appellant had raised a matter that had not been brought to the attention of the EEO counselor. This appeal followed. On appeal, appellant presented several arguments as to why his complaint should be regarded as timely. He argued that he had tried to contact the agency concerning his complaint and that his complaint was "ultimately accepted and investigated" by the agency. He claimed he was not aware of the 45 day time limitation to contact an EEO Counselor. Appellant also claimed that he was prevented by circumstances beyond his control from contacting an EEO Counselor within the 45 days in that he had tried to contact the Counselor by telephone and received no response to his inquiries. Finally, appellant argued that the 45 day time limit should be extended in his case because of the "significant difficulties he faced in submitting his pro se complaint of mental and physical disability discrimination." ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or within 45 days of the effective date of the personnel action. The agency sent a certified letter to appellant informing him of his termination on February 26, 1996, which was signed for by appellant's spouse on February 29, 1996. (Appellant argued that he did not receive the termination notice until March 6, 1996 but offers no proof of that receipt date.) Calculating the 45 day limitation period from the receipt of the letter on February 29, 1996, the last day to have timely contacted an EEO Counselor would have been April 14, 1996, a Sunday. The time limitation is extended to the next business day if the last day to file the appeal falls on a weekend or holiday. See 29 C.F.R. §1614.604. Therefore, appellant's last day to timely contact the EEO counselor was Monday, April 15, 1996. According to appellant's appeal statement, he tried to contact the EEO Counselor by phone on April 16, 1996, April 19, 1996 and April 24, 1996<1> and received no response to his calls. Each of these attempts were beyond the 45 day limitation period. Appellant's actual first contact with the EEO office occurred on July 12, 1996, well past the 45 day limitation period. Appellant had been absent from the workplace from May 1995, until his termination on February 26, 1996, therefore, none of the other alleged incidents of discrimination at the workplace could have taken place in the 45 day period preceding appellant's EEO contact. Appellant claims that his mental impairment prevented him from contacting the EEO counselor in a timely manner and that he "acted as quickly as possible under the circumstances." The Courts have held that a complainant's mental condition may justify tolling the limitation period, if the impairment renders the complainant incompetent and incapable of handling his own affairs or comprehending his legal rights. Speiser v. Department of Health & Human Services, 670 F. Supp 380, (D.D.C. 1986), aff'd without opinion, 818 F.2d 95 (D.C. Cir. 1987). Merely suffering from impaired judgement is not sufficient to toll the limitation period, and appellant has presented insufficient evidence to support a finding that he was incapable of handling his own affairs during the 45 day limitation period. Thompson v. Department of Agriculture, EEOC Request No. 05971092 (July 3, 1997), Miller v. Department of the Air Force, EEOC Request No. 05950888 (December 2, 1996). The Commission finds that appellant has failed to submit adequate justification for tolling the time limitation on this ground. EEOC Regulation 29 C.F.R. §1614.105(a)(2) provides that the agency or the Commission shall extend the 45 day time limit when the complainant shows he or she was not notified of the time limits and was not otherwise aware of them. It is the Commission's policy that constructive knowledge of the rights and obligations under Title VII will be imputed to a complainant where the agency has fulfilled its statutory duty of conspicuously posting EEO posters informing employees of their rights. See Piccone v. U.S. Postal Service, EEOC Request No. 05950678 (April 11, 1996) citing Brown v. Department of Commerce, EEOC Request No. 05890978 (January 10, 1990). However, the agency has the burden of producing sufficient evidence to support its contention that it fulfilled its statutory duty of conspicuously posting EEO information or that it otherwise notified the complainant of his or her rights. In addition, the Commission has found that constructive knowledge will not be imputed to a complainant without specific evidence that the posters contained notice of the time limitation for contacting an EEO Counselor. Piccone citing Pride v. U.S. Postal Service, EEOC Request No. 05930134 (August 19, 1993). Appellant claimed on appeal that he knew EEO posters were posted on a bulletin board two floors above his workplace, and that it had the names, addresses and phone numbers of the EEO Counselors on it, but claimed that there was no information as to time limits for filing complaints. The agency provided, with its response to appellant's appeal, a copy of the EEO poster on display next to the lunchroom at appellant's workplace. The poster's contents include the names, pictures, addresses and phone numbers of the EEO Counselors and the EEO Staff, as well as information about the time limitations for contacting an EEO Counselor and the requirement that informal counseling be undertaken before a formal complaint can be filed. The poster was last revised in October 1989 and still has the time limit from 29 C.F.R. §1613 that specifies a complainant has 30 days from the date of the discriminatory event to contact a Counselor. The agency argued that this inaccuracy does not prejudice appellant because had he relied on the time limit in the poster he would have filed in a timely manner. The Commission agrees. Therefore, the agency properly dismissed allegation 1 for untimely contact with an EEO Counselor.<2> 29 C.F.R. §1614.107(b) provides that a complaint or a portion thereof shall be dismissed if it raises a matter that has not been brought to the attention of a Counselor and is not like or related to a matter that has been brought to the attention of a Counselor. Appellant also alleged, in his amended complaint on December 15, 1997, that there were fabrications in correspondence to OWCP and the Chief of Engineers. We note that, according to the EEO Counselor's report, this matter was not brought to the Counselor's attention, and is clearly not like any other issue raised during counseling. On appeal, appellant did not put forth any arguments to show otherwise. Therefore, we find that this allegation was properly dismissed. Accordingly, the decision of the agency was proper and is AFFIRMED. | John C. Klag v. Department of the Army
01982513
May 28, 1999
John C. Klag, )
Appellant, )
) Appeal No. 01982513
v. ) Agency No. AVHGF09801I0010
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision 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., and §501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. §791 et seq. The final agency decision was
dated January 9, 1998, and received by appellant on January 12, 1998.
The appeal was postmarked on February 9, 1998. Accordingly, the appeal
is timely (see 29 C.F.R. §1614.402(a)), and is accepted in accordance
with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for untimely contact with an EEO Counselor and for raising an
issue that had not been counseled during the EEO process.
BACKGROUND
Appellant filed a formal complaint on November 6, 1997, which he amended
on December 15, 1997, alleging discrimination on the bases of sex (male),
physical disability (back injury), mental disability (unspecified)
and reprisal (whistle-blower activity). The agency characterized
appellant's allegations as he was discriminated against when (1) from
July 14, 1988 onward, he was subjected to a history of discrimination,
including slander, denial of annual leave, unfair appraisals, denial of
a transfer request and lack of recognition, ending in his termination
on February 26, 1996, and (2) he was discriminated against based on
fabrications in correspondence to the Office of Workers' Compensation
Programs (OWCP) and the Chief of Engineers.
In its final agency decision, the agency dismissed allegation 1 of the
complaint for untimely contact with an EEO Counselor in that appellant
had not contacted the Counselor within the 45 day limitation period.
Appellant's first contact with the EEO office was on July 12, 1996.
It dismissed allegation 2 on the grounds that appellant had raised a
matter that had not been brought to the attention of the EEO counselor.
This appeal followed.
On appeal, appellant presented several arguments as to why his complaint
should be regarded as timely. He argued that he had tried to contact the
agency concerning his complaint and that his complaint was "ultimately
accepted and investigated" by the agency. He claimed he was not aware of
the 45 day time limitation to contact an EEO Counselor. Appellant also
claimed that he was prevented by circumstances beyond his control from
contacting an EEO Counselor within the 45 days in that he had tried
to contact the Counselor by telephone and received no response to his
inquiries. Finally, appellant argued that the 45 day time limit should be
extended in his case because of the "significant difficulties he faced
in submitting his pro se complaint of mental and physical disability
discrimination."
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO Counselor within 45 days of the
date of the matter alleged to be discriminatory or within 45 days of the
effective date of the personnel action. The agency sent a certified
letter to appellant informing him of his termination on February
26, 1996, which was signed for by appellant's spouse on February 29,
1996. (Appellant argued that he did not receive the termination notice
until March 6, 1996 but offers no proof of that receipt date.) Calculating
the 45 day limitation period from the receipt of the letter on February
29, 1996, the last day to have timely contacted an EEO Counselor would
have been April 14, 1996, a Sunday. The time limitation is extended
to the next business day if the last day to file the appeal falls on a
weekend or holiday. See 29 C.F.R. §1614.604. Therefore, appellant's
last day to timely contact the EEO counselor was Monday, April 15, 1996.
According to appellant's appeal statement, he tried to contact the EEO
Counselor by phone on April 16, 1996, April 19, 1996 and April 24, 1996<1>
and received no response to his calls. Each of these attempts were
beyond the 45 day limitation period. Appellant's actual first contact
with the EEO office occurred on July 12, 1996, well past the 45 day
limitation period. Appellant had been absent from the workplace from
May 1995, until his termination on February 26, 1996, therefore, none
of the other alleged incidents of discrimination at the workplace could
have taken place in the 45 day period preceding appellant's EEO contact.
Appellant claims that his mental impairment prevented him from contacting
the EEO counselor in a timely manner and that he "acted as quickly
as possible under the circumstances." The Courts have held that a
complainant's mental condition may justify tolling the limitation
period, if the impairment renders the complainant incompetent and
incapable of handling his own affairs or comprehending his legal rights.
Speiser v. Department of Health & Human Services, 670 F. Supp 380,
(D.D.C. 1986), aff'd without opinion, 818 F.2d 95 (D.C. Cir. 1987).
Merely suffering from impaired judgement is not sufficient to toll the
limitation period, and appellant has presented insufficient evidence to
support a finding that he was incapable of handling his own affairs during
the 45 day limitation period. Thompson v. Department of Agriculture,
EEOC Request No. 05971092 (July 3, 1997), Miller v. Department of the
Air Force, EEOC Request No. 05950888 (December 2, 1996). The Commission
finds that appellant has failed to submit adequate justification for
tolling the time limitation on this ground.
EEOC Regulation 29 C.F.R. §1614.105(a)(2) provides that the agency or the
Commission shall extend the 45 day time limit when the complainant shows
he or she was not notified of the time limits and was not otherwise
aware of them. It is the Commission's policy that constructive
knowledge of the rights and obligations under Title VII will be imputed
to a complainant where the agency has fulfilled its statutory duty of
conspicuously posting EEO posters informing employees of their rights.
See Piccone v. U.S. Postal Service, EEOC Request No. 05950678 (April 11,
1996) citing Brown v. Department of Commerce, EEOC Request No. 05890978
(January 10, 1990). However, the agency has the burden of producing
sufficient evidence to support its contention that it fulfilled its
statutory duty of conspicuously posting EEO information or that it
otherwise notified the complainant of his or her rights. In addition,
the Commission has found that constructive knowledge will not be imputed
to a complainant without specific evidence that the posters contained
notice of the time limitation for contacting an EEO Counselor. Piccone
citing Pride v. U.S. Postal Service, EEOC Request No. 05930134 (August
19, 1993).
Appellant claimed on appeal that he knew EEO posters were posted on a
bulletin board two floors above his workplace, and that it had the names,
addresses and phone numbers of the EEO Counselors on it, but claimed
that there was no information as to time limits for filing complaints.
The agency provided, with its response to appellant's appeal, a copy
of the EEO poster on display next to the lunchroom at appellant's
workplace. The poster's contents include the names, pictures, addresses
and phone numbers of the EEO Counselors and the EEO Staff, as well as
information about the time limitations for contacting an EEO Counselor
and the requirement that informal counseling be undertaken before a
formal complaint can be filed. The poster was last revised in October
1989 and still has the time limit from 29 C.F.R. §1613 that specifies
a complainant has 30 days from the date of the discriminatory event to
contact a Counselor. The agency argued that this inaccuracy does not
prejudice appellant because had he relied on the time limit in the poster
he would have filed in a timely manner. The Commission agrees. Therefore,
the agency properly dismissed allegation 1 for untimely contact with an
EEO Counselor.<2>
29 C.F.R. §1614.107(b) provides that a complaint or a portion thereof
shall be dismissed if it raises a matter that has not been brought to the
attention of a Counselor and is not like or related to a matter that has
been brought to the attention of a Counselor. Appellant also alleged, in
his amended complaint on December 15, 1997, that there were fabrications
in correspondence to OWCP and the Chief of Engineers. We note that,
according to the EEO Counselor's report, this matter was not brought
to the Counselor's attention, and is clearly not like any other issue
raised during counseling. On appeal, appellant did not put forth any
arguments to show otherwise. Therefore, we find that this allegation
was properly dismissed.
Accordingly, the decision of the agency was proper and is AFFIRMED.
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. 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 (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:
May 28, 1999
______________ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 Appellant also offered as proof that he had tried to contact an EEO
Counselor in a timely fashion his attempts to contact the Department of
the Army's Personnel Department by telephone eight times on February 26,
1996. This is before he claims to have received the termination letter.
2 The agency shall ensure that a revised poster with the correct time
limits is placed on display. | [
"Thompson v. Department of Agriculture, EEOC Request No. 05971092 (July 3, 1997)",
"Miller v. Department of the Air Force, EEOC Request No. 05950888 (December 2, 1996)",
"Piccone v. U.S. Postal Service, EEOC Request No. 05950678 (April 11, 1996)",
"Brown v. Department of Commerce, EEOC Request No. 05890978 (J... | [
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0.05778033658862114,
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248 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a20526.txt | 01a20526.txt | TXT | text/plain | 14,144 | 02 . Kirk L. Chong, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency. | September 26, 2001 | Appeal Number: 01A20526
Case Facts:
Legal Analysis:
Upon review, the Commission finds that complainant's claim was improperly
dismissed for failure to state a claim and for untimely EEO Counselor
contact pursuant to 29 C.F.R. 1614.107(a)(1) and (2). Complainant timely
appealed the agency's decision dated September 26, 2001, dismissing his
claim of discrimination on the basis of disability when he was not hired
as a police dispatcher by the agency.
The agency's final decision dismissed the claim on the grounds of failure
to state a claim. The regulation set forth at 29 C.F.R. § 1614.107(a)(1)
provides, in relevant part, that an agency shall dismiss a complaint
that fails to state a claim. An agency shall accept a complaint from
any aggrieved employee or applicant for employment who believes that he
or she has been discriminated against by that agency because of race,
color, religion, sex, national origin, age or disabling condition.
29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case
precedent has long defined an "aggrieved employee" as one who suffers a
present harm or loss with respect to a term, condition, or privilege of
employment for which there is a remedy. Diaz v. Department of the Air
Force, EEOC Request No. 05931049 (April 21, 1994).
The agency in its final decision states that complainant was a referral
of Gulfstream Goodwill Industries, Inc. (Goodwill), who the agency
argues is an Independent Contractor, insinuating complainant was not an
employee or applicant of a government position. However, after reviewing
the September 27, 2000 letter that informed complainant that he was not
receiving the position as a police dispatcher at the agency, it is clear
that he was an applicant for a government position. Complainant applied
for a government position, suffered a harm with respect to his employment
and believed he was discriminated against. Therefore, complainant is
within the protection of EEOC regulations and the agency improperly
dismissed his complaint for failure to state a claim.
Alternatively, the agency dismissed complainant's claim on the ground that
he failed to contact an EEO Counselor in a timely manner. EEOC Regulation
29 C.F.R. 1614.105(a)(1) requires complaints of discrimination to be
brought to the attention of an EEO Counselor within forty-five (45) days
of the date of the claimed discriminatory matter, or, in the case of a
personnel action, within forty-five (45) days of the effective date of
the action. The record discloses that the alleged discriminatory event
occurred on September 27, 2000, but complainant did not initiate contact
with an EEO Counselor until May 7, 2001, which is beyond the forty-five
(45) day limitation period.
Where, as here, there is an issue of timeliness, "[a]n agency always bears
the burden of obtaining sufficient information to support a reasoned
determination as to timeliness." Guy v. Department of Energy, EEOC
Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of
Defense, EEOC Request No. 05920506 (August 25, 1992)). In addition, in
Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14,
1993), the Commission stated that the agency has the burden of providing
evidence and/or proof to support its final decisions. See also Gens
v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992).
The burden is placed on the agency to show that complainant had actual or
constructive knowledge of the applicable time limits. In its decision,
the agency dismissed complainant's claim on the grounds that complainant
went outside the EEO process and did not contact the EEO Counselor
within the prescribed time frame.
However, Commission regulations provide that the time limit will be
extended when complainant shows he or she was not notified of the time
limits and was not other wise aware of them, that he or she did not
know or reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence he or she was
prevented by circumstances beyond his or her control from contacting the
counselor within the time limits, or for reasons considered sufficient by
the agency or the Commission. See 29 C.F.R. 1614.105(a)(2). On appeal,
complainant has presented persuasive arguments and evidence warranting
an extension of the time limit for initiating EEO Counselor contact.
Specifically, complainant argues that he was not notified of the EEO
process. Complainant received a letter on September 27, 2000 from the
agency stating he did not receive the position as a police dispatcher.
Complainant was never given the proper notice of the EEO process.
Goodwill, the referral company that placed complainant in the position
at the agency, also did not inform complainant of the EEO process to
file a discriminatory claim against the agency.
To satisfy the criterion for EEO Counselor contact, complainant need
only contact an official logically connected with the EEO process, even
if that official is not an EEO Counselor, and exhibits an intent to begin
the EEO process. See Cox v. Department of Housing and Urban Development,
EEOC Request No. 05980083 (July 30, 1998); Allen v. United States Postal
Service, EEOC Request No. 05950933 (July 9, 1996). Since complainant was
not given any direction by the agency on how to pursue a discriminatory
claim, he incorrectly went to the Palm Beach County Office of Equal
Opportunity (PBCOEO) on October 12, 2000, instead of the agency's EEO
Counselor to file his discrimination complaint. Although complainant
went to the wrong EEO office, his actions demonstrated he had the intent
to begin the EEO process and the Commission therefore finds he satisfied
the criterion to contact a EEO Counselor within forty-five (45) days of a
discriminatory matter. On October 20, 2000 PBCOEO told complainant that
they did not have the authority to investigate complaints against the
U.S. government. Nothing in the record indicates that PBCOEO informed
complainant of the correct EEO process to file a claim with the agency.
While complainant was trying to file a claim at the PBCOEO, Goodwill was
investigating how file a complaint against the agency. In March 2001,
complainant was informed by Goodwill to file his complaint with the
Office of Resolution Management at the agency. Thereafter, complainant
contacted the agency's EEO Counselor on May 7, 2001. Complainant received
his Notice of Rights and Responsibilities from the EEO Counselor on May
10, 2001 and this was the first time complainant was informed of any
appeal rights and procedures he could pursue if he believed he was not
hired because of discriminatory reasons.
Based on a review of the record, the Commission finds that complainant has
submitted adequate justification, pursuant to 29 C.F.R. 1614.105(a)(2),
for extending the time limitation for EEO Counselor contact beyond the
forty-five (45) days. The complainant sufficiently showed evidence that
he was not aware of the EEO process and that although he did not follow
correct EEO procedure he tried to file his claim with an official that was
logically connected to the EEO process within the prescribed time frame.
The agency failed to show that complainant had actual or constructive
knowledge of the applicable time limits.
Final Decision:
Accordingly, the agency's decision is hereby REVERSED. | Kirk L. Chong v. Department of Veterans Affairs
01A20526
6/19/02
.
Kirk L. Chong,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A20526
Agency No. 2001-3172
DECISION
Upon review, the Commission finds that complainant's claim was improperly
dismissed for failure to state a claim and for untimely EEO Counselor
contact pursuant to 29 C.F.R. 1614.107(a)(1) and (2). Complainant timely
appealed the agency's decision dated September 26, 2001, dismissing his
claim of discrimination on the basis of disability when he was not hired
as a police dispatcher by the agency.
The agency's final decision dismissed the claim on the grounds of failure
to state a claim. The regulation set forth at 29 C.F.R. § 1614.107(a)(1)
provides, in relevant part, that an agency shall dismiss a complaint
that fails to state a claim. An agency shall accept a complaint from
any aggrieved employee or applicant for employment who believes that he
or she has been discriminated against by that agency because of race,
color, religion, sex, national origin, age or disabling condition.
29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case
precedent has long defined an "aggrieved employee" as one who suffers a
present harm or loss with respect to a term, condition, or privilege of
employment for which there is a remedy. Diaz v. Department of the Air
Force, EEOC Request No. 05931049 (April 21, 1994).
The agency in its final decision states that complainant was a referral
of Gulfstream Goodwill Industries, Inc. (Goodwill), who the agency
argues is an Independent Contractor, insinuating complainant was not an
employee or applicant of a government position. However, after reviewing
the September 27, 2000 letter that informed complainant that he was not
receiving the position as a police dispatcher at the agency, it is clear
that he was an applicant for a government position. Complainant applied
for a government position, suffered a harm with respect to his employment
and believed he was discriminated against. Therefore, complainant is
within the protection of EEOC regulations and the agency improperly
dismissed his complaint for failure to state a claim.
Alternatively, the agency dismissed complainant's claim on the ground that
he failed to contact an EEO Counselor in a timely manner. EEOC Regulation
29 C.F.R. 1614.105(a)(1) requires complaints of discrimination to be
brought to the attention of an EEO Counselor within forty-five (45) days
of the date of the claimed discriminatory matter, or, in the case of a
personnel action, within forty-five (45) days of the effective date of
the action. The record discloses that the alleged discriminatory event
occurred on September 27, 2000, but complainant did not initiate contact
with an EEO Counselor until May 7, 2001, which is beyond the forty-five
(45) day limitation period.
Where, as here, there is an issue of timeliness, "[a]n agency always bears
the burden of obtaining sufficient information to support a reasoned
determination as to timeliness." Guy v. Department of Energy, EEOC
Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of
Defense, EEOC Request No. 05920506 (August 25, 1992)). In addition, in
Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14,
1993), the Commission stated that the agency has the burden of providing
evidence and/or proof to support its final decisions. See also Gens
v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992).
The burden is placed on the agency to show that complainant had actual or
constructive knowledge of the applicable time limits. In its decision,
the agency dismissed complainant's claim on the grounds that complainant
went outside the EEO process and did not contact the EEO Counselor
within the prescribed time frame.
However, Commission regulations provide that the time limit will be
extended when complainant shows he or she was not notified of the time
limits and was not other wise aware of them, that he or she did not
know or reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence he or she was
prevented by circumstances beyond his or her control from contacting the
counselor within the time limits, or for reasons considered sufficient by
the agency or the Commission. See 29 C.F.R. 1614.105(a)(2). On appeal,
complainant has presented persuasive arguments and evidence warranting
an extension of the time limit for initiating EEO Counselor contact.
Specifically, complainant argues that he was not notified of the EEO
process. Complainant received a letter on September 27, 2000 from the
agency stating he did not receive the position as a police dispatcher.
Complainant was never given the proper notice of the EEO process.
Goodwill, the referral company that placed complainant in the position
at the agency, also did not inform complainant of the EEO process to
file a discriminatory claim against the agency.
To satisfy the criterion for EEO Counselor contact, complainant need
only contact an official logically connected with the EEO process, even
if that official is not an EEO Counselor, and exhibits an intent to begin
the EEO process. See Cox v. Department of Housing and Urban Development,
EEOC Request No. 05980083 (July 30, 1998); Allen v. United States Postal
Service, EEOC Request No. 05950933 (July 9, 1996). Since complainant was
not given any direction by the agency on how to pursue a discriminatory
claim, he incorrectly went to the Palm Beach County Office of Equal
Opportunity (PBCOEO) on October 12, 2000, instead of the agency's EEO
Counselor to file his discrimination complaint. Although complainant
went to the wrong EEO office, his actions demonstrated he had the intent
to begin the EEO process and the Commission therefore finds he satisfied
the criterion to contact a EEO Counselor within forty-five (45) days of a
discriminatory matter. On October 20, 2000 PBCOEO told complainant that
they did not have the authority to investigate complaints against the
U.S. government. Nothing in the record indicates that PBCOEO informed
complainant of the correct EEO process to file a claim with the agency.
While complainant was trying to file a claim at the PBCOEO, Goodwill was
investigating how file a complaint against the agency. In March 2001,
complainant was informed by Goodwill to file his complaint with the
Office of Resolution Management at the agency. Thereafter, complainant
contacted the agency's EEO Counselor on May 7, 2001. Complainant received
his Notice of Rights and Responsibilities from the EEO Counselor on May
10, 2001 and this was the first time complainant was informed of any
appeal rights and procedures he could pursue if he believed he was not
hired because of discriminatory reasons.
Based on a review of the record, the Commission finds that complainant has
submitted adequate justification, pursuant to 29 C.F.R. 1614.105(a)(2),
for extending the time limitation for EEO Counselor contact beyond the
forty-five (45) days. The complainant sufficiently showed evidence that
he was not aware of the EEO process and that although he did not follow
correct EEO procedure he tried to file his claim with an official that was
logically connected to the EEO process within the prescribed time frame.
The agency failed to show that complainant had actual or constructive
knowledge of the applicable time limits.
Accordingly, the agency's decision is hereby REVERSED. The complaint
is REMANDED for further processing in accordance with the Order below.
STATEMENT OF RIGHTS - ON APPEAL
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.
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
6/19/02
Date
| [
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"Guy v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994)",
"Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992)",
"Ericson v. Department of the Army, EEOC Request No. 05920623 (Januar... | [
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249 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0520120449.txt | 0520120449.txt | TXT | text/plain | 6,409 | Peter M. Solari, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency. | April 20, 2012 | Appeal Number: 0120121030 | Peter M. Solari,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Request No. 0520120449
Appeal No. 0120121030
Agency No. 11-65888-03905
DENIAL
Complainant timely requested reconsideration of the decision in Peter M. Solari v. Department of the Navy, EEOC Appeal No. 0120121030 (April 20, 2012). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(b).
The previous decision affirmed the Agency's dismissal of Complainant's complaint, alleging discrimination based on disability and age, on the bases of failure to state a claim and untimely EEO Counselor contact. The previous decision found that five of Complainant's claims occurred outside of the 45-day period in which to contact an EEO Counselor, and that his EEO Counselor contact was therefore untimely. It also found that the remaining claim, which was timely raised, did not state a claim as it did not allege a harm to a term, condition, or privilege of employment, and that it was insufficient to allege a claim of a hostile work environment.
In his request for reconsideration, Complainant argues that his claims should not have been dismissed. He argues, for the first time before the Commission, that his EEO Counselor contact appeared untimely because it was "North Island policy" for the supervisor to make EEO contact for employees who wish to initiate EEO counseling. He argues that he raised his desire to initiate EEO counseling with his supervisor during the week of July 11, 2011, which would have been within the 45-day period. He states that his supervisor replied, "You make the appointment and let me know when it is!" Complainant contends that his representative then helped him locate the number for the EEO Counselor and he initiated contact, but that his supervisor's refusal to contact the EEO Counselor contributed to his untimely EEO contact. He also argues that he has been subjected to a hostile work environment. The Agency did not file a statement or brief in opposition to Complainant's request for reconsideration.
We find that Complainant's request for reconsideration fails to show that our previous decision involved a clearly erroneous interpretation of fact or law, or that it would have a substantial impact on the policies, practices or operations of the Agency. We find that Complainant did not advance the arguments regarding the reasons he was untimely in his initial appeal. We note that a request for reconsideration is not a second form of appeal. E.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007); Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (Nov. 9, 1999), at 9-17. This Commission carefully considered all of the record evidence and arguments on appeal at the time it rendered the initial decision. The Commission declines to consider these issues where they are being raised for the first time in a request for reconsideration.1
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120121030 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
November 16, 2012
Date
1 The Agency is advised that it may wish to conduct EEO training at the Fleet Readiness Center Southwest, North Island facility in San Diego, California, in order to correct any misperceptions that employees and supervisors may have regarding how the 29 C.F.R. Part 1614 process works, and exactly who is responsible for initiating EEO contact. The Commission is disturbed by Complainant's allegation, if true, that his supervisor would have to initiate contact with an EEO Counselor on his behalf, as this is a gross misconception of how the EEO process is intended to work.
------------------------------------------------------------
------------------------------------------------------------
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"42 U.S.C. § 2000e",
"29 U.S.C. §§ 791"
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250 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0520110558.txt | 0520110558.txt | TXT | text/plain | 6,626 | John D. Callaway, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. | April 8, 2011 | Appeal Number: 0120092264 | John D. Callaway,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Request No. 0520110558
Request No. 0520100416
Appeal No. 0120092264
Agency No. HS-09-CBP-003463
DENIAL
Complainant timely requested reconsideration of the decision in John D. Callaway v. Department of Homeland Security, EEOC Appeal No. 0520100416 (April 8, 2011). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(b).
On March 2, 2009, Complainant filed an EEO complaint on the bases of race, national origin, color, and age when, on July 19, 2008, the Agency rescinded its conditional offer of employment. The Agency dismissed Complainant's complaint finding that it failed to state a claim, and for untimely EEO Counselor contact. In EEOC Appeal No. 0120092264 (May 13, 2010), the Commission affirmed the Agency's dismissal on the basis of failure to state a claim, finding that the Commission was precluded from reviewing the validity of the requirement of a security clearance and the substance of a security clearance determination. It did not address the Agency's dismissal for untimely EEO Counselor contact.
Complainant filed a request for reconsideration, which was docketed as EEOC Request No. 0520100416 (April 8, 2011). In that decision, we found that the previous decision should not have analyzed the complaint as a claim of a security clearance denial, but rather as an allegation of discrimination in a suitability determination. We vacated the previous decision, and went on to analyze the Agency's alternative basis for dismissal, the untimely EEO Counselor contact. The previous request for reconsideration decision found that Complainant's contact was untimely, and it upheld the Agency's dismissal on this basis. However, because the original appeal decision had not addressed the dismissal for untimeliness, the parties were given additional rights to request reconsideration.
On May 2, 2011, Complainant filed a second request for reconsideration. He argued that although his initial contact with an EEO Counselor on February 10, 2009, was outside of the 45-day period, the time limits should be tolled because the Agency had not notified him of his EEO rights when it rescinded the offer of employment. He also argued that although he was employed by a different sub-Agency of the Department of Homeland Security (Transportation Security Administration (TSA)), he was unaware of the process for initiating an EEO complaint. He argued that he first made EEO contact with his own employing Agency, and was told that he would have to contact an EEO Counselor at Customs and Border Protection. He did not state on what date he initiated contact with a TSA EEO Counselor, nor did he supply evidence of contact. Complainant also argued that he delayed contacting an EEO Counselor because he had requested information of the Agency which would demonstrate the reasons for the withdrawal of his employment offer.
The Agency submitted a statement in opposition to Complainant's request for reconsideration. It argued that Complainant's request should be denied because as a supervisor at TSA, Complainant should have had knowledge of the time limits for initiating the filing of an EEO complaint. It urged the Commission to deny Complainant's request for reconsideration.
We find that Complainant's request for reconsideration fails to show that our previous decision involved a clearly erroneous interpretation of material fact or law, or that it would have a substantial impact on the policies, practices or operations of the Agency. Complainant does not deny that he did not contact an EEO counselor at the Agency until February 10, 2009. He does not supply any evidence of earlier attempts to file any kind of EEO complaint, either with TSA or with other individuals who might logically be connected with the EEO process.
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0520100416 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
February 28, 2013
Date
| [
"John D. Callaway v. Department of Homeland Security, EEOC Appeal No. 0520100416 (April 8, 2011)",
"29 C.F.R. § 1614.405(b)",
"42 U.S.C. § 2000e",
"29 U.S.C. §§ 791"
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251 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120172120.txt | 0120172120.txt | TXT | text/plain | 12,924 | Sharonda M.,1 Complainant, v. Rick Perry, Secretary, Department of Energy, Agency. | April 26, 2017 | Appeal Number: 0120172120
Background:
At the time of events giving rise to this complaint, Complainant worked as a General Engineer at the Agency's Savannah River Site (SRS) Operations Office Infrastructure and Area "Completion" Division facility in Aiken, South Carolina.
On or around February 21, 2017, Complainant filed a formal complaint alleging that the Agency's EEO Director at the SRS site engaged in a pattern of interfering with her pursuant of her rights to utilize the EEO complaint process in violation of the anti-retaliation clause in Title VII. In effort of her claim, Complainant asserted the following events occurred:
1. On or around October 31, 2016, Complainant learned that the SRS EEO Director told a subordinate SRS EEO Specialist ("Specialist") that Complainant could not come into the SRS EEO Office to speak with or meet with the SRS EEO Specialist.
2. On or around October 31, 2016, Complainant learned that the SRS EEO Director told the Specialist that if the Specialist spoke with Complainant, the Specialist had to inform the EEO Director so that the EEO Director would be present during any conversation between the Specialist and Complainant.
3. On or around October 31, 2016, Complainant learned that the SRS EEO Director told the Specialist that Complainant could not utilize the spare EEO office to speak with an administrative judge and Agency counsel, with regard to two of Complainant's complaints which were at the hearing stage.
4. On or around October 31, 2016, Complainant learned that the EEO Director told the Specialist that she was "favoring" Complainant.
5. On November 22, 2016, a [named] Agency attorney sent a letter regarding the transmittal of the hearing transcript for Complainant's two pending hearings, even though the named attorney "should not have been involved in Complainant's cases, per the instructions of an administrative judge."
The record before us includes a signed statement from the now-retired SRS EEO Specialist who confirmed that the incidents described in the allegations were true, and that she was a witness to the incidents which occurred in October and November 2016.
Agency Decision
The Agency issued a final decision dismissing the complaint pursuant to 29 C.F.R. § 1614.107(a) (1) for failure to state a claim. The Agency reasoned that claims 1, 2, 3 and 5 constituted spin-off complaints, as they allege dissatisfaction with the processing of Complainant's previously filed EEO complaints. Next, the Agency dismissed claim 4 for failure to state a claim, reasoning that Complainant did not allege that she suffered a harm or loss. The Agency stated that "one ambiguous stray remark, particularly one that Complainant did not hear firsthand, does not affect a term, condition, or privilege of employment, let alone one for which there is a remedy." The Agency dismissed the entire complaint.
This appeal followed.
Legal Analysis:
The Commission has found that any action by an Agency manager that interferes with an employee's rights to pursue the EEO complaint process, or has the effect of intimidating or chilling the exercise of those rights under the EEO statutes, constitutes a violation of the statutory protection against retaliation. See Binseel v. Dep't of the Army, EEOC Request No. 05970584 (October 8, 1998); Yubuki v. Dep't of the Army, EEOC Request No. 05920778 (June 4, 1993); Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).
Here, we understand the Agency's characterization of the individual incidents cited by Complainant as alleging dissatisfaction with the processing of prior complaints, which is usually subject to dismissal as an independent claim. However, a fair reading of the complaint shows that Complainant is alleging that she has been subjected to an ongoing series of related incidents of disparate treatment by the SRS EEO Director designed to interfere with her pursuit of her rights through the EEO complaint process, and deny her access to the EEO office, including its staff and other resources that are available to other SRS employees. In so alleging, we find that she has stated a viable claim of being denied benefits and privileges provided to other employees in violation of the anti-retaliation prohibition of Title VII. This claim should not have been dismissed, but needs to be investigated and further processed.
After a review of the record, we find that this Title VII claim was improperly dismissed pursuant to 29 C.F.R. § 1614.107(a) (1) for failure to state a claim. | Sharonda M.,1
Complainant,
v.
Rick Perry,
Secretary,
Department of Energy,
Agency.
Appeal No. 0120172120
Agency No. 170012SRO
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated April 26, 2017, dismissing her complaint alleging unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a General Engineer at the Agency's Savannah River Site (SRS) Operations Office Infrastructure and Area "Completion" Division facility in Aiken, South Carolina.
On or around February 21, 2017, Complainant filed a formal complaint alleging that the Agency's EEO Director at the SRS site engaged in a pattern of interfering with her pursuant of her rights to utilize the EEO complaint process in violation of the anti-retaliation clause in Title VII. In effort of her claim, Complainant asserted the following events occurred:
1. On or around October 31, 2016, Complainant learned that the SRS EEO Director told a subordinate SRS EEO Specialist ("Specialist") that Complainant could not come into the SRS EEO Office to speak with or meet with the SRS EEO Specialist.
2. On or around October 31, 2016, Complainant learned that the SRS EEO Director told the Specialist that if the Specialist spoke with Complainant, the Specialist had to inform the EEO Director so that the EEO Director would be present during any conversation between the Specialist and Complainant.
3. On or around October 31, 2016, Complainant learned that the SRS EEO Director told the Specialist that Complainant could not utilize the spare EEO office to speak with an administrative judge and Agency counsel, with regard to two of Complainant's complaints which were at the hearing stage.
4. On or around October 31, 2016, Complainant learned that the EEO Director told the Specialist that she was "favoring" Complainant.
5. On November 22, 2016, a [named] Agency attorney sent a letter regarding the transmittal of the hearing transcript for Complainant's two pending hearings, even though the named attorney "should not have been involved in Complainant's cases, per the instructions of an administrative judge."
The record before us includes a signed statement from the now-retired SRS EEO Specialist who confirmed that the incidents described in the allegations were true, and that she was a witness to the incidents which occurred in October and November 2016.
Agency Decision
The Agency issued a final decision dismissing the complaint pursuant to 29 C.F.R. § 1614.107(a) (1) for failure to state a claim. The Agency reasoned that claims 1, 2, 3 and 5 constituted spin-off complaints, as they allege dissatisfaction with the processing of Complainant's previously filed EEO complaints. Next, the Agency dismissed claim 4 for failure to state a claim, reasoning that Complainant did not allege that she suffered a harm or loss. The Agency stated that "one ambiguous stray remark, particularly one that Complainant did not hear firsthand, does not affect a term, condition, or privilege of employment, let alone one for which there is a remedy." The Agency dismissed the entire complaint.
This appeal followed.
ANALYSIS AND FINDINGS
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age, disability, genetic information, or retaliation. See 29 C.F.R. 1614.103(a) and 1614.106(a).
The Commission has found that any action by an Agency manager that interferes with an employee's rights to pursue the EEO complaint process, or has the effect of intimidating or chilling the exercise of those rights under the EEO statutes, constitutes a violation of the statutory protection against retaliation. See Binseel v. Dep't of the Army, EEOC Request No. 05970584 (October 8, 1998); Yubuki v. Dep't of the Army, EEOC Request No. 05920778 (June 4, 1993); Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).
Here, we understand the Agency's characterization of the individual incidents cited by Complainant as alleging dissatisfaction with the processing of prior complaints, which is usually subject to dismissal as an independent claim. However, a fair reading of the complaint shows that Complainant is alleging that she has been subjected to an ongoing series of related incidents of disparate treatment by the SRS EEO Director designed to interfere with her pursuit of her rights through the EEO complaint process, and deny her access to the EEO office, including its staff and other resources that are available to other SRS employees. In so alleging, we find that she has stated a viable claim of being denied benefits and privileges provided to other employees in violation of the anti-retaliation prohibition of Title VII. This claim should not have been dismissed, but needs to be investigated and further processed.
After a review of the record, we find that this Title VII claim was improperly dismissed pursuant to 29 C.F.R. § 1614.107(a) (1) for failure to state a claim.
CONCLUSION
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint. We REMAND the complaint to the Agency for further processing in accordance with this decision and the Order below.
ORDER
The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. In processing this complaint on remand, the Agency shall ensure that all steps are taken to prevent a conflict of interest, or even an appearance of such a conflict, with the SRS EEO office. 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 was issued, 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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (M0617)
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 tends 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (R0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
November 7, 2017
__________________
Date
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252 | https://www.eeoc.gov/sites/default/files/decisions/2021_08_31/0520180084.pdf | 0520180084.pdf | PDF | application/pdf | 13,112 | Terrie M .,1 Complainant, v. Tom Vilsack , Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency. | June 21, 2016 | Appeal Number: 0120172443
Background:
Complainant, a Food Inspector, GS -1863- 07, working at the Agency’s District Office in Baker,
Alabama, received notice on June 21, 2016, that management was proposing to remove her for
unauthorized absences and failure to f ollow instructions. Complainant File (CF) Exhibit (Ex.) 11.
On July 11, 2016, Complainant contacted an EEO Counselor on what became Agency No. FSIS -
2016- 00805. Agency’s Request for Reconsideration (RFR), Ex. C. She alleged to the Counselor
that the Agency had discriminated against her on the bases of race (African -American) and age
(51) by issuing her a notice of proposed removal on June 21, 2016. The proposed removal was
dated June 15, 2016. Efforts to resol ve the matter i nformally were unsuccessful. On October 12,
2016, Complainant received the Notice of Right to File a Formal EEO Complaint . The Notice
informed Complainant that if she wished to pursue a formal complaint, she was required to file her
complai nt within 15 calendar days after receipt of the Notice. Complainant failed to file a formal
complaint prior to expiration of the 15- day time frame, and the Agency closed Agency No. FSIS -
2016- 00805.
On August 26, 2016, Complainant received notice that the proposed removal dated June 15, 2016 had been sustained by the District Manager (DM). The DM found that the charges which led to
the removal being proposed were supported by a preponderance of the evidence. The last page of the notice advised Complai nant that if she decided to file a complaint through the Agency’s
discrimination complaints process, she would have to contact the Civil Rights Division within 45 days of the effective date of the action. RFR, Ex. D. On February 22, 2017, Complainant c ontacted an EEO C ounselor on what became Agency No.
FSIS -2017- 00397, the complaint now before us. CF, Ex. 13, p. 1. The C ounselor’s report
ident ified the allegations as whether the Agency discriminated against her on the bases of race and
age when:
1. On F ebruary 15, 2017, Complainan t was notified that her request to return to duty had
been denied; and
2. On January 7, 2017, during arbitration, Complainant became aware that a sim ilarly -
situated employee was offered a Last Chance A greement to return to work while she
was not.
CF, Ex. 8, Ex. 13, pp. 2 -3. On May 16, 2017, Complainant received Notice of her R ight to File a
Formal EEO C omplaint. On May 25, 2017, Complainant filed her formal EEO Complaint on
Agency No. FSIS -2017 -00397. In her complaint, Complainant claimed that the Agency
discriminated against her on the bases of color (Black) and age when:
1. On August 26, 2016, she was terminated from her position of Food Inspector, GS -1863-
07; and
2. On or about January 7, 2017, during arbitra tion, she learned management did not offer
her a Last Chance Agreement to return to work following her removal .
CF, Ex. 5. The Agency issued a final agency decision (FAD) on June 9, 2017 . Therein, the Agency
dismissed the first claim pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely contact with an EEO
Counselor . Further, the Agency dismissed the second claim pursuant to 29 C.F.R. §
1614.107(a)(1) as a collateral attack on the grievance process. CF, Ex. 3. As to the first claim,
the Agency reiterated in the FAD that the termination occurred more than five months before
2 Complainant did not raise any claims related to allegedly being denied reinstatement in Fe bruary
2017.
Complainant initiated contact with the EEO Counselor , and that she was presume d to be aware of
the 45- day time limit as a result of having had prior experience with the EEO process.
On July 12, 2017, Complainant filed an appeal with the Commission . In her appeal, Complainant
presented documentation regarding a mediation that she claimed demonstrated that she timely
contacted an EEO Counselor and that she had a pending EEO matter regarding the proposed
removal. In Terri e M. v. Dep artmen t of Agric ulture , EEOC Appeal No. 0120172443 (Oct ober 6,
2017), the Commission reversed the Agenc y’s dismissal of the first claim. Based on the evidence
that was before us at the time, the Commission reasonably believed that Complainant still had a
pending EEO complaint regarding the proposed removal . As a result, t he Commission found that
Complainant’s timely EEO Counselor contact on the proposed removal dated June 15, 2016
obviated the need for Complainant to contact an EEO Counselor for a second time, as the proposed
removal merged with the actual removal. Additionally, t he previous decision affirmed the
Agency’s dismissal of the second claim.
In its request for reconsideration, the Agency argues that Agency No. FSIS -2016- 00805 was not
pending in February 2017 because Complainant dropped her case by not filing a formal complaint after being notified of her right to do so. The Agency also argues that Complaint never sought EEO counseling with regard to her August 26, 2016, removal and that , even if the proposed
removal had merged with the actual removal, Complainant’s February 22, 2017, EEO Counselor
contact was still untimely. Complainant did not respond to the Agency’s request for
reconsideration.
Legal Analysis:
the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates that: (1) the appellate decision involved a cl early 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. See 29 C.F.R. §
1614.405(c). For the reasons that follow, we DENY the Agency’s request, but will reconsider this
matter on our own motion.
BACKGROUND
Complainant, a Food Inspector, GS -1863- 07, working at the Agency’s District Office in Baker,
Alabama, received notice on June 21, 2016, that management was proposing to remove her for
unauthorized absences and failure to f ollow instructions. Complainant File (CF) Exhibit (Ex.) 11.
On July 11, 2016, Complainant contacted an EEO Counselor on what became Agency No. FSIS -
2016- 00805. Agency’s Request for Reconsideration (RFR), Ex. C. She alleged to the Counselor
that the Agency had discriminated against her on the bases of race (African -American) and age
(51) by issuing her a notice of proposed removal on June 21, 2016. The proposed removal was
dated June 15, 2016. Efforts to resol ve the matter i nformally were unsuccessful. On October 12,
2016, Complainant received the Notice of Right to File a Formal EEO Complaint . The Notice
informed Complainant that if she wished to pursue a formal complaint, she was required to file her
complai nt within 15 calendar days after receipt of the Notice. Complainant failed to file a formal
complaint prior to expiration of the 15- day time frame, and the Agency closed Agency No. FSIS -
2016- 00805.
On August 26, 2016, Complainant received notice that the proposed removal dated June 15, 2016 had been sustained by the District Manager (DM). The DM found that the charges which led to
the removal being proposed were supported by a preponderance of the evidence. The last page of the notice advised Complai nant that if she decided to file a complaint through the Agency’s
discrimination complaints process, she would have to contact the Civil Rights Division within 45 days of the effective date of the action. RFR, Ex. D. On February 22, 2017, Complainant c ontacted an EEO C ounselor on what became Agency No.
FSIS -2017- 00397, the complaint now before us. CF, Ex. 13, p. 1. The C ounselor’s report
ident ified the allegations as whether the Agency discriminated against her on the bases of race and
age when:
1. On F ebruary 15, 2017, Complainan t was notified that her request to return to duty had
been denied; and
2. On January 7, 2017, during arbitration, Complainant became aware that a sim ilarly -
situated employee was offered a Last Chance A greement to return to work while she
was not.
CF, Ex. 8, Ex. 13, pp. 2 -3. On May 16, 2017, Complainant received Notice of her R ight to File a
Formal EEO C omplaint. On May 25, 2017, Complainant filed her formal EEO Complaint on
Agency No. FSIS -2017 -00397. In her complaint, Complainant claimed that the Agency
discriminated against her on the bases of color (Black) and age when:
1. On August 26, 2016, she was terminated from her position of Food Inspector, GS -1863-
07; and
2. On or about January 7, 2017, during arbitra tion, she learned management did not offer
her a Last Chance Agreement to return to work following her removal .
CF, Ex. 5. The Agency issued a final agency decision (FAD) on June 9, 2017 . Therein, the Agency
dismissed the first claim pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely contact with an EEO
Counselor . Further, the Agency dismissed the second claim pursuant to 29 C.F.R. §
1614.107(a)(1) as a collateral attack on the grievance process. CF, Ex. 3. As to the first claim,
the Agency reiterated in the FAD that the termination occurred more than five months before
2 Complainant did not raise any claims related to allegedly being denied reinstatement in Fe bruary
2017.
Complainant initiated contact with the EEO Counselor , and that she was presume d to be aware of
the 45- day time limit as a result of having had prior experience with the EEO process.
On July 12, 2017, Complainant filed an appeal with the Commission . In her appeal, Complainant
presented documentation regarding a mediation that she claimed demonstrated that she timely
contacted an EEO Counselor and that she had a pending EEO matter regarding the proposed
removal. In Terri e M. v. Dep artmen t of Agric ulture , EEOC Appeal No. 0120172443 (Oct ober 6,
2017), the Commission reversed the Agenc y’s dismissal of the first claim. Based on the evidence
that was before us at the time, the Commission reasonably believed that Complainant still had a
pending EEO complaint regarding the proposed removal . As a result, t he Commission found that
Complainant’s timely EEO Counselor contact on the proposed removal dated June 15, 2016
obviated the need for Complainant to contact an EEO Counselor for a second time, as the proposed
removal merged with the actual removal. Additionally, t he previous decision affirmed the
Agency’s dismissal of the second claim.
In its request for reconsideration, the Agency argues that Agency No. FSIS -2016- 00805 was not
pending in February 2017 because Complainant dropped her case by not filing a formal complaint after being notified of her right to do so. The Agency also argues that Complaint never sought EEO counseling with regard to her August 26, 2016, removal and that , even if the proposed
removal had merged with the actual removal, Complainant’s February 22, 2017, EEO Counselor
contact was still untimely. Complainant did not respond to the Agency’s request for
reconsideration.
ANALYSIS
The Agency argues that because the removal occurred on August 26, 2016, the last da te for
contacting an EEO Counselor on Agency No. FSIS -2017- 00397 was October 10, 2016, and,
consequently, Complainant’s contact with the EEO Counselor on February 22, 2017, was
untimely . But, a s noted above , with respect to Agency No. FSIS -2016- 00805, Complainant
contact ed an EEO Counselor on July 11, 2016, after the proposed removal had been received by
Complainant on June 21, 2016, but before it had been sustained on August 26, 2016. When an
agency proceeds on a proposed action , the completed action merges with the proposed action .
Jaskot v. Dep’t of Veterans Affairs , EEOC Appeal No. 01962880 n. 1 (Aug. 12, 1998). Because
Complainant contacted the Counselor less than 45 days after she received the notice of the
proposed removal, her contact on the actual removal was timely with respect to Agency No. FSIS -
2016- 00805. Consequently, based on the information that was available to the Commission at the
time, the Agency’s request fails to satisfy the criteria for reconsideration. Nevertheless, t he
Commission will exercise its discretion and reconsider the previous decision on its own motion.
See e.g. Brown v. Soc . Sec. Admin., EEOC Request No. 05990822 (July 20, 2001); Freeman v.
Dep’t of the Army , EEOC Request No. 05990031 (July 13, 2001); Anderson v. Soc. Sec. Admin .,
EEOC Request No. 05960035 (July 19, 1996) .
It is well established that when a complainant receives counseling on an allegation but does not go
forward with a formal complaint on that allegation, the matter is deemed abandoned, and cannot
be raised in another complaint. Small v. U .S. Postal Serv ., EEOC Request No. 05980289 (Jul y
16, 1999). W ith respect to Agency No. FSIS -2016- 00805, Complainan t was counseled on the
removal claim while it was still in the proposed removal stage , as noted above . She received notice
of her right to file a formal comp laint regarding Agency No. FSIS -2016 -00805 on October 12,
2016, after the removal action had been completed on August 26, 2016, but never filed that
complaint, thereby allowing the filing period to lapse after October 27, 2016. In so doing,
Complainant eff ectively abandoned Agency No. FSIS -2016- 00805 insofar as the August 26, 2016
removal is concerned.
After her February 2017 Counselor contact, Complainant was counseled regarding a denial of reinstatement claim. However, in her formal complaint , Complainant attempted to resurrect the
removal claim that she had previously abandoned. She is clearly barred from doing so under our
precedent.
In addition, a second ground exists for dismissing Agency No. FSIS -2017 -00397. The Agency
must dismiss a c omplaint that raises a claim that ha s not been brought to the attention of an EEO
Counselor and is not like or related to a matter that has been brought to the attention of an EEO
Counselor. 29 C.F.R. § 1614.107(a)(2). As just discussed , Complainant, in her formal complaint
for Agency No. FSIS -2017- 00397, raised the August 26, 2016, removal that had been abandoned
instead of the February 15, 2017, reinstatement request denial claim that she raised with the EEO
Counselor during the informal processing of Agency No. FSIS -2017- 00397. The two incidents
are completely separate and independent discrete actions that occurred nearly six months apart and
are not part of any claim of continuous harassment or ongoing depri vation of employment terms,
conditions, privileges, or benefits. The August 2016 removal was therefore neither brought to an
EEO Counselor’s attention during the informal processing of Agency No. FSIS -2017- 00397 nor
like or related to the 2017 denial of r einstatement that was brought to the EEO Counselor’s
attention during the informal processing of Agency No. FSIS -2017- 00397.
Final Decision:
Accordingly, t his complaint can be dismissed pursuant to 29 C.F.R. § 1614.107(a)(2). CONCLUSION After reconsidering the previous decision and the entire record, the Commission finds that the Agency's request fails to meet the criteria of 29 C.F.R. § 1614.405(c) . Nevertheless , it is the decision of the Commission to reconsider the previous decision on its own motion. The decision of the Commission in Appeal No. 0120172443 is REVERSED . The final agency decision dismissing Agency No. FSIS -2017- 00397 is AFFIRMED. | Terrie M .,1
Complainant,
v.
Tom Vilsack ,
Secretary,
Department of Agriculture
(Food Safety and Inspection Service),
Agency.
Request No. 0520180084
Appeal No. 0120172443
Agency No. FSIS-2017-00397
DECISION ON REQUEST FOR RECONSIDERATION
The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Terrie M. v. Dep’t of Agric ulture, EEOC Appeal No.
0120172443 (Oct ober 6, 2017). EEOC r egulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates that: (1) the appellate decision involved a cl early 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. See 29 C.F.R. §
1614.405(c). For the reasons that follow, we DENY the Agency’s request, but will reconsider this
matter on our own motion.
BACKGROUND
Complainant, a Food Inspector, GS -1863- 07, working at the Agency’s District Office in Baker,
Alabama, received notice on June 21, 2016, that management was proposing to remove her for
unauthorized absences and failure to f ollow instructions. Complainant File (CF) Exhibit (Ex.) 11.
On July 11, 2016, Complainant contacted an EEO Counselor on what became Agency No. FSIS -
2016- 00805. Agency’s Request for Reconsideration (RFR), Ex. C. She alleged to the Counselor
that the Agency had discriminated against her on the bases of race (African -American) and age
(51) by issuing her a notice of proposed removal on June 21, 2016. The proposed removal was
dated June 15, 2016. Efforts to resol ve the matter i nformally were unsuccessful. On October 12,
2016, Complainant received the Notice of Right to File a Formal EEO Complaint . The Notice
informed Complainant that if she wished to pursue a formal complaint, she was required to file her
complai nt within 15 calendar days after receipt of the Notice. Complainant failed to file a formal
complaint prior to expiration of the 15- day time frame, and the Agency closed Agency No. FSIS -
2016- 00805.
On August 26, 2016, Complainant received notice that the proposed removal dated June 15, 2016 had been sustained by the District Manager (DM). The DM found that the charges which led to
the removal being proposed were supported by a preponderance of the evidence. The last page of the notice advised Complai nant that if she decided to file a complaint through the Agency’s
discrimination complaints process, she would have to contact the Civil Rights Division within 45 days of the effective date of the action. RFR, Ex. D. On February 22, 2017, Complainant c ontacted an EEO C ounselor on what became Agency No.
FSIS -2017- 00397, the complaint now before us. CF, Ex. 13, p. 1. The C ounselor’s report
ident ified the allegations as whether the Agency discriminated against her on the bases of race and
age when:
1. On F ebruary 15, 2017, Complainan t was notified that her request to return to duty had
been denied; and
2. On January 7, 2017, during arbitration, Complainant became aware that a sim ilarly -
situated employee was offered a Last Chance A greement to return to work while she
was not.
CF, Ex. 8, Ex. 13, pp. 2 -3. On May 16, 2017, Complainant received Notice of her R ight to File a
Formal EEO C omplaint. On May 25, 2017, Complainant filed her formal EEO Complaint on
Agency No. FSIS -2017 -00397. In her complaint, Complainant claimed that the Agency
discriminated against her on the bases of color (Black) and age when:
1. On August 26, 2016, she was terminated from her position of Food Inspector, GS -1863-
07; and
2. On or about January 7, 2017, during arbitra tion, she learned management did not offer
her a Last Chance Agreement to return to work following her removal .
CF, Ex. 5. The Agency issued a final agency decision (FAD) on June 9, 2017 . Therein, the Agency
dismissed the first claim pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely contact with an EEO
Counselor . Further, the Agency dismissed the second claim pursuant to 29 C.F.R. §
1614.107(a)(1) as a collateral attack on the grievance process. CF, Ex. 3. As to the first claim,
the Agency reiterated in the FAD that the termination occurred more than five months before
2 Complainant did not raise any claims related to allegedly being denied reinstatement in Fe bruary
2017.
Complainant initiated contact with the EEO Counselor , and that she was presume d to be aware of
the 45- day time limit as a result of having had prior experience with the EEO process.
On July 12, 2017, Complainant filed an appeal with the Commission . In her appeal, Complainant
presented documentation regarding a mediation that she claimed demonstrated that she timely
contacted an EEO Counselor and that she had a pending EEO matter regarding the proposed
removal. In Terri e M. v. Dep artmen t of Agric ulture , EEOC Appeal No. 0120172443 (Oct ober 6,
2017), the Commission reversed the Agenc y’s dismissal of the first claim. Based on the evidence
that was before us at the time, the Commission reasonably believed that Complainant still had a
pending EEO complaint regarding the proposed removal . As a result, t he Commission found that
Complainant’s timely EEO Counselor contact on the proposed removal dated June 15, 2016
obviated the need for Complainant to contact an EEO Counselor for a second time, as the proposed
removal merged with the actual removal. Additionally, t he previous decision affirmed the
Agency’s dismissal of the second claim.
In its request for reconsideration, the Agency argues that Agency No. FSIS -2016- 00805 was not
pending in February 2017 because Complainant dropped her case by not filing a formal complaint after being notified of her right to do so. The Agency also argues that Complaint never sought EEO counseling with regard to her August 26, 2016, removal and that , even if the proposed
removal had merged with the actual removal, Complainant’s February 22, 2017, EEO Counselor
contact was still untimely. Complainant did not respond to the Agency’s request for
reconsideration.
ANALYSIS
The Agency argues that because the removal occurred on August 26, 2016, the last da te for
contacting an EEO Counselor on Agency No. FSIS -2017- 00397 was October 10, 2016, and,
consequently, Complainant’s contact with the EEO Counselor on February 22, 2017, was
untimely . But, a s noted above , with respect to Agency No. FSIS -2016- 00805, Complainant
contact ed an EEO Counselor on July 11, 2016, after the proposed removal had been received by
Complainant on June 21, 2016, but before it had been sustained on August 26, 2016. When an
agency proceeds on a proposed action , the completed action merges with the proposed action .
Jaskot v. Dep’t of Veterans Affairs , EEOC Appeal No. 01962880 n. 1 (Aug. 12, 1998). Because
Complainant contacted the Counselor less than 45 days after she received the notice of the
proposed removal, her contact on the actual removal was timely with respect to Agency No. FSIS -
2016- 00805. Consequently, based on the information that was available to the Commission at the
time, the Agency’s request fails to satisfy the criteria for reconsideration. Nevertheless, t he
Commission will exercise its discretion and reconsider the previous decision on its own motion.
See e.g. Brown v. Soc . Sec. Admin., EEOC Request No. 05990822 (July 20, 2001); Freeman v.
Dep’t of the Army , EEOC Request No. 05990031 (July 13, 2001); Anderson v. Soc. Sec. Admin .,
EEOC Request No. 05960035 (July 19, 1996) .
It is well established that when a complainant receives counseling on an allegation but does not go
forward with a formal complaint on that allegation, the matter is deemed abandoned, and cannot
be raised in another complaint. Small v. U .S. Postal Serv ., EEOC Request No. 05980289 (Jul y
16, 1999). W ith respect to Agency No. FSIS -2016- 00805, Complainan t was counseled on the
removal claim while it was still in the proposed removal stage , as noted above . She received notice
of her right to file a formal comp laint regarding Agency No. FSIS -2016 -00805 on October 12,
2016, after the removal action had been completed on August 26, 2016, but never filed that
complaint, thereby allowing the filing period to lapse after October 27, 2016. In so doing,
Complainant eff ectively abandoned Agency No. FSIS -2016- 00805 insofar as the August 26, 2016
removal is concerned.
After her February 2017 Counselor contact, Complainant was counseled regarding a denial of reinstatement claim. However, in her formal complaint , Complainant attempted to resurrect the
removal claim that she had previously abandoned. She is clearly barred from doing so under our
precedent.
In addition, a second ground exists for dismissing Agency No. FSIS -2017 -00397. The Agency
must dismiss a c omplaint that raises a claim that ha s not been brought to the attention of an EEO
Counselor and is not like or related to a matter that has been brought to the attention of an EEO
Counselor. 29 C.F.R. § 1614.107(a)(2). As just discussed , Complainant, in her formal complaint
for Agency No. FSIS -2017- 00397, raised the August 26, 2016, removal that had been abandoned
instead of the February 15, 2017, reinstatement request denial claim that she raised with the EEO
Counselor during the informal processing of Agency No. FSIS -2017- 00397. The two incidents
are completely separate and independent discrete actions that occurred nearly six months apart and
are not part of any claim of continuous harassment or ongoing depri vation of employment terms,
conditions, privileges, or benefits. The August 2016 removal was therefore neither brought to an
EEO Counselor’s attention during the informal processing of Agency No. FSIS -2017- 00397 nor
like or related to the 2017 denial of r einstatement that was brought to the EEO Counselor’s
attention during the informal processing of Agency No. FSIS -2017- 00397. Accordingly, t his
complaint can be dismissed pursuant to 29 C.F.R. § 1614.107(a)(2).
CONCLUSION
After reconsidering the previous decision and the entire record, the Commission finds that the Agency's request fails to meet the criteria of 29 C.F.R. § 1614.405(c) . Nevertheless , it is the
decision of the Commission to reconsider the previous decision on its own motion. The decision of the Commission in Appeal No. 0120172443 is REVERSED . The final agency decision
dismissing Agency No. FSIS -2017- 00397 is AFFIRMED. There is no further right of
administrative appeal on the decision of the Commission on a Request to Reconsider. The Agency does not have to comply with previous decision’s Order.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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 wor k.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civi l action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
/s/ Rachel See
__________________________________ Bernadett e B. Wilson’s signature
Rachel See
Acting Executive Officer
Executive Secretariat
April 22, 2021 _______________________ Date | [
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"Anderson v. Soc. Sec. Admin ., EEOC Request No. 05960035 (July 19, 1996)",
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253 | https://www.eeoc.gov/sites/default/files/decisions/2021_08_16/2020005352.pdf | 2020005352.pdf | PDF | application/pdf | 11,947 | Adalberto D.,1 Complainant, v. James E. McPherson, Acting Secretary, Department of the Navy, Agency. | August 31, 2020 | Appeal Number: 2020005352
Background:
During the period at issue, Complainant worked as a n EEO Specialist at the Agency’s Military
Sealift Command (MSC) in Norfolk, Virginia.
On August 6, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to unlawful retaliation for engaging in prior protected EEO activity when he was removed from
federal ser vice effective March 31, 2019.
The Agency dismissed Complainant’s complaint for untimely EEO Counselor contact. The Agency reasoned that Complainant initiated EEO contact on May 22, 2020, outside of the
applicable time period. The Agency denied Complainant’s request for equitable tol ling, noting
that Complainant is a seasoned EEO Specialist and is well aware of the applicable time limit.
The instant appeal followed. Compla inant asserts that he timely made initial EEO contact on
September 28, 2018, for Agency Case No. DON -18-0033-01398 after he received the proposed
removal on September 4, 2018. Complainant further asserts that he appealed a decision from the
Merits Systems Protection Board ( MSPB ) on this matter (removal) to the Court of Appeals Federal
Circuit and that his EEO contact was within 45 days of receiving Court’s decision. Finally,
Complainant asserts that the Agency failed to co mplete counseling within 30 days and requests
sanctions.
In response, the Agency requests that we affirm its final decision dismissing Complainant’s complaint for untimely EEO Counselor contact. The Agency asserts that the federal court decision cited by Complainant did not relate to his March 31, 2019 removal. Specifically, the Agency states
that Complainant “is seeking to assert the MSPB appeals process he availed himself of in regard to an unrelated 2018 action, i.e. indefinite suspension…, as the stated basis for his untimely 2020 formal EEO complaint…” Finally, the Agency requests that we deny Complainant’s request for sanctions reasoning that Complainant has not shown that he experienced a negative impact from the Agency’s brief delay in the counse ling process.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty -five (45)
days of the date of the matt er alleged to be discriminatory or, in the case of a personnel action,
within forty- five (45) days of the effective date of the action.
EEOC regulations provide that the agency or the Commission shall extend the time limits when
the individual shows tha t he was not notified of the time limits and was not otherwise aware of
them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. Here, the Agency properly dismissed the formal complaint for untimely EEO counselor contact. Complainant initiated EEO contact on May 22, 2020, regarding his removal effective March 31,
2019, outside of the applicable time period.
2 We are not persuaded by Complainant’s assertion
that he timely initiated EEO contact regarding his removal on September 28, 2018 in Agency Case
No. DON -18-00033- 01398. The record contains the Notice of Right to File a Formal Complaint
for Agency Case No. DON -18-00033- 01398. Therein, the Notice reflects that Complainant
initiated EEO contact on Se ptember 28, 2018 regarding an indefinite suspension, and not his
removal.
2 The record contains a copy of the Agency’s March 27, 2019 final removal decision. Therein , the
Agency informed Complainant that if he wanted to pursue a discrimination complaint on his removal, he should contact an EEO Counselor within 45 days of the effective date of the action.
We also are not persuaded by Complainant’s assertion that his May 22, 2020 EEO contact was
timely due to a decision issued on April 8, 2020, by the United States Court of Appeals for the
Federal Circuit, in which the Court affirmed an MSPB decision (MSPB Docket No. DC-0752-18-
0850-I- 1 (March 11, 2019). See 809 Fed. Appx. 872 (April 8, 2020). MSPB Docket No. DC -
0752-18-0850-I- 1 affirmed Complainant’s indefinite suspension and did not address his removal.
Thus, the April 8, 2020 Court decision did not involve Complainant’s removal .3
The record also contains a copy of another MSPB decision, MSPB Docket No. DC-1221-19-0772-
W-1 (Dec. 19, 2019), pertaining to an individual right of action (IRA) appeal filed by Complainant
with the MSPB regarding his removal. According to the decision, Complainant filed this appeal with the MSPB after July 24, 2019, the date the Office of Special Counsel issued Complainant a
notice of right to file a n IRA appeal. The MSPB dismissed this appeal for lack of jurisdiction.
The Commission has held that when a complainant files a mixed -case appeal with the MSPB and
it is dismissed on jurisdictional grounds, the agency is required to promptly notify the complainant, in writing, of his right to contact an EEO Counselor and to file a complaint subject to 29 C.F.R. §1614.107. See 29 C.F.R. §1614.302(b). When there is a mixed- case appeal, the date on which
complainant filed his appeal with the MSPB shall be dee med to be the date of initial contact with
the EEO Counselor. See Bell v. Dep't of Defense, EEOC Request No. 05940741 (Jan. 6, 1995).
We note that even if we were to use Complainant’s filing date of his appeal to the MSPB regarding
his removal (a date subsequent to July 24, 2019) as his EEO Counselor contact date, his EEO
contact would still be untimely. Based on the foregoing, we find that Complainant failed to provide
sufficient justification for extending the applicable time limit.
We AFFI RM the Agency’s final decision dismissin g the formal complai nt for untimely EEO
Counselor contact.
3 We further note that this MSPB decision and Court of Appeals Federal Circuit decision affirmed
the Agency’s action and did not dismiss the matter (indefinite suspension) for lack of jurisdiction .
4 We deny Complainant’s motion for sanctions. We do not find that Complainant was harmed by
the Agency’s brief delay in concluding EEO Counseling. | Adalberto D.,1
Complainant,
v.
James E. McPherson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 2020005352
Agency No. DON-20-02543-02141
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated August 31, 2020, dismissing a formal
complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
BACKGROUND
During the period at issue, Complainant worked as a n EEO Specialist at the Agency’s Military
Sealift Command (MSC) in Norfolk, Virginia.
On August 6, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to unlawful retaliation for engaging in prior protected EEO activity when he was removed from
federal ser vice effective March 31, 2019.
The Agency dismissed Complainant’s complaint for untimely EEO Counselor contact. The Agency reasoned that Complainant initiated EEO contact on May 22, 2020, outside of the
applicable time period. The Agency denied Complainant’s request for equitable tol ling, noting
that Complainant is a seasoned EEO Specialist and is well aware of the applicable time limit.
The instant appeal followed. Compla inant asserts that he timely made initial EEO contact on
September 28, 2018, for Agency Case No. DON -18-0033-01398 after he received the proposed
removal on September 4, 2018. Complainant further asserts that he appealed a decision from the
Merits Systems Protection Board ( MSPB ) on this matter (removal) to the Court of Appeals Federal
Circuit and that his EEO contact was within 45 days of receiving Court’s decision. Finally,
Complainant asserts that the Agency failed to co mplete counseling within 30 days and requests
sanctions.
In response, the Agency requests that we affirm its final decision dismissing Complainant’s complaint for untimely EEO Counselor contact. The Agency asserts that the federal court decision cited by Complainant did not relate to his March 31, 2019 removal. Specifically, the Agency states
that Complainant “is seeking to assert the MSPB appeals process he availed himself of in regard to an unrelated 2018 action, i.e. indefinite suspension…, as the stated basis for his untimely 2020 formal EEO complaint…” Finally, the Agency requests that we deny Complainant’s request for sanctions reasoning that Complainant has not shown that he experienced a negative impact from the Agency’s brief delay in the counse ling process.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty -five (45)
days of the date of the matt er alleged to be discriminatory or, in the case of a personnel action,
within forty- five (45) days of the effective date of the action.
EEOC regulations provide that the agency or the Commission shall extend the time limits when
the individual shows tha t he was not notified of the time limits and was not otherwise aware of
them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. Here, the Agency properly dismissed the formal complaint for untimely EEO counselor contact. Complainant initiated EEO contact on May 22, 2020, regarding his removal effective March 31,
2019, outside of the applicable time period.
2 We are not persuaded by Complainant’s assertion
that he timely initiated EEO contact regarding his removal on September 28, 2018 in Agency Case
No. DON -18-00033- 01398. The record contains the Notice of Right to File a Formal Complaint
for Agency Case No. DON -18-00033- 01398. Therein, the Notice reflects that Complainant
initiated EEO contact on Se ptember 28, 2018 regarding an indefinite suspension, and not his
removal.
2 The record contains a copy of the Agency’s March 27, 2019 final removal decision. Therein , the
Agency informed Complainant that if he wanted to pursue a discrimination complaint on his removal, he should contact an EEO Counselor within 45 days of the effective date of the action.
We also are not persuaded by Complainant’s assertion that his May 22, 2020 EEO contact was
timely due to a decision issued on April 8, 2020, by the United States Court of Appeals for the
Federal Circuit, in which the Court affirmed an MSPB decision (MSPB Docket No. DC-0752-18-
0850-I- 1 (March 11, 2019). See 809 Fed. Appx. 872 (April 8, 2020). MSPB Docket No. DC -
0752-18-0850-I- 1 affirmed Complainant’s indefinite suspension and did not address his removal.
Thus, the April 8, 2020 Court decision did not involve Complainant’s removal .3
The record also contains a copy of another MSPB decision, MSPB Docket No. DC-1221-19-0772-
W-1 (Dec. 19, 2019), pertaining to an individual right of action (IRA) appeal filed by Complainant
with the MSPB regarding his removal. According to the decision, Complainant filed this appeal with the MSPB after July 24, 2019, the date the Office of Special Counsel issued Complainant a
notice of right to file a n IRA appeal. The MSPB dismissed this appeal for lack of jurisdiction.
The Commission has held that when a complainant files a mixed -case appeal with the MSPB and
it is dismissed on jurisdictional grounds, the agency is required to promptly notify the complainant, in writing, of his right to contact an EEO Counselor and to file a complaint subject to 29 C.F.R. §1614.107. See 29 C.F.R. §1614.302(b). When there is a mixed- case appeal, the date on which
complainant filed his appeal with the MSPB shall be dee med to be the date of initial contact with
the EEO Counselor. See Bell v. Dep't of Defense, EEOC Request No. 05940741 (Jan. 6, 1995).
We note that even if we were to use Complainant’s filing date of his appeal to the MSPB regarding
his removal (a date subsequent to July 24, 2019) as his EEO Counselor contact date, his EEO
contact would still be untimely. Based on the foregoing, we find that Complainant failed to provide
sufficient justification for extending the applicable time limit.
We AFFI RM the Agency’s final decision dismissin g the formal complai nt for untimely EEO
Counselor contact.
3 We further note that this MSPB decision and Court of Appeals Federal Circuit decision affirmed
the Agency’s action and did not dismiss the matter (indefinite suspension) for lack of jurisdiction .
4 We deny Complainant’s motion for sanctions. We do not find that Complainant was harmed by
the Agency’s brief delay in concluding EEO Counseling.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0920)
The Commission may, in its discretion, reconsider this appellate decision if Complainant or the
Agency submits a written request that contains arguments or evidence that tend to establish that:
1. The appellate decision involved a clearly erroneous inter pretation 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thir ty (30) calendar days of receipt of this decision. If the party requesting reconsideration
elects to file a statement or brief in support of the request, that statement or brief must be filed
together with the request for reconsideration . A party shall h ave twenty (20) calendar days
from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO M D-110), at Chap. 9 § VII.B (Aug. 5, 2015).
Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx
Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or
statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required.
Failure to file within the 30 -day time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (S06 10)
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 per son 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
___________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director Office of Federal Operations
January 25, 2021
Date | [
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"29 C.F.R. § 1614.604",
"29 C.F.R. § 1614.403(g)",
"29 C.F.R. § 1614.604(c)",
"42 U.S.C. § 2000e"
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254 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0320170016.txt | 0320170016.txt | TXT | text/plain | 13,431 | November 17, 2016 |
Background:
At the time of events giving rise to this matter, Petitioner worked as a GS-13 Equal Employment Opportunity (EEO) Manager with the Agency's Civil Rights Division in Alameda, California. On May 8, 2015, management rated Petitioner's performance at the "fails to meet" level in the core competency of "quality of work." On May 18, 2015, management issued Petitioner a notice of unsatisfactory performance, informed her that she had failed to meet the minimum standards for the core competency, and placed her on a 90-day performance improvement plan (PIP). On September 21, 2015, following the conclusion of the PIP period, management issued Petitioner a notice of proposed removal for unacceptable performance. On November 13, 2015, management issued Petitioner a decision to remove her, effective immediately.
Petitioner filed a mixed case appeal with the MSPB alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity when it removed her. On September 14, 2016, after a hearing, an MSPB Administrative Judge (AJ) issued an initial decision sustaining the unacceptable performance charge, finding no discrimination, and affirming Petitioner's removal.
In sustaining the unacceptable performance charge, the MSPB AJ found that the Agency proved by substantial evidence that Petitioner's performance in the core competency was unacceptable during the PIP period. Citing documentary and testimonial evidence, the MSPB AJ found five examples of how Petitioner failed to meet the core competency: (1) on May 20, 2015, she did not recognize the need to amend a settlement agreement where the parties had substantially modified a term of their agreement without formally amending the agreement to reflect the change; (2) on June 17, 2015, she submitted a counseling report that did not contain accurate data (names, dates, events) and required multiple revisions; (3) on June 30, 2015, she submitted a counseling plan that did not include the timeframe for interviewing the parties or witnesses, did not identify specific pertinent questions and areas of inquiry, and did not contain accurate event dates; (4) on July 14, 2015, she submitted a supplemental counseling report for a performance appraisal claim that did not specify the appraisal period and was not in the proper format; and (5) on July 28, 2015, she unnecessarily disclosed the identity of a complainant through email, thereby violating the complainant's privacy rights and exposing the Agency to liability.
In finding no discrimination, the MSPB AJ relied upon the MSPB's decision in Savage v. Department of the Army, 122 M.S.P.R. 612 (2015). In Savage, the MSPB, among other things, determined that the analytical framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), was not applicable to its proceedings. Savage, 122 M.S.P.R. at 637. In rejecting the McDonnell Douglas framework, the MSPB maintained that the MSPB's authority to adjudicate and remedy alleged violations of 42 U.S.C. § 2000e-16 is a matter of civil service law. Id.
In Petitioner's case, the MSPB AJ found that Petitioner did not prove that her prior protected EEO activity (March 2014 and ongoing) was a motivating factor in her removal. Specifically, the MSPB AJ cited Petitioner's own testimony that management viewed her work with disfavor from the time they first worked together, which pre-dated her protected EEO activity. In addition, although Petitioner asserted that a GS-7 EEO Specialist could corroborate her assertion that management held her to a higher standard than EEO Managers who had not engaged in protected EEO activity, the MSPB AJ found that there was nothing in the GS-7 EEO Specialist's testimony to show that management treated her differently than similarly situated employees who had not engaged in protected EEO activity.2 Moreover, the MSPB AJ found that management credibly testified that it was not upset about Petitioner's protected EEO activity and that the protected EEO activity played no role in its actions. In so finding, the MSPB AJ noted that she credited management's testimony based on her observations of management's testimony, the detailed and consistent nature of management's testimony, and the fact that nothing in the GS-7 EEO Specialist's testimony contradicted management's testimony.
On October 19, 2016, the MSPB AJ's initial decision became the MSPB's final decision. Petitioner then filed the instant petition.
ARGUMENTS IN PETITION
In her petition, Petitioner contends that the MSPB erred in finding no discrimination. Among other things, Petitioner argues that the MSPB did not properly analyze her discrimination claim pursuant to the appropriate legal standard. In addition, Petitioner argues that management was aware of her March 2014 protected EEO activity and that it removed her while the protected EEO activity was pending. Moreover, Petitioner argues that the MSPB should not have merely accepted management's self-serving testimony that it was not upset about her protected EEO activity.
STANDARD OF REVIEW
EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. § 1614.303 et seq. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. § 1614.305(c).
Legal Analysis:
the Commission should concur with the MSPB's ultimate finding that Petitioner did not establish that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity (March 2014 and ongoing) when it removed her, despite the MSPB's reliance on an erroneous standard of review.
BACKGROUND
At the time of events giving rise to this matter, Petitioner worked as a GS-13 Equal Employment Opportunity (EEO) Manager with the Agency's Civil Rights Division in Alameda, California. On May 8, 2015, management rated Petitioner's performance at the "fails to meet" level in the core competency of "quality of work." On May 18, 2015, management issued Petitioner a notice of unsatisfactory performance, informed her that she had failed to meet the minimum standards for the core competency, and placed her on a 90-day performance improvement plan (PIP). On September 21, 2015, following the | Raquel T.,1
Petitioner,
v.
John F. Kelly,
Secretary,
Department of Homeland Security
(U.S. Coast Guard),
Agency.
Petition No. 0320170016
MSPB No. SF0432160146I1
DECISION
On November 17, 2016, Petitioner filed a timely petition with the Equal Employment Opportunity Commission asking for review of a final decision issued by the Merit Systems Protection Board (MSPB) concerning her claim of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, we CONCUR with the MSPB's finding that Petitioner did not establish that the Agency discriminated against her as alleged.
ISSUE PRESENTED
The issue presented is whether the Commission should concur with the MSPB's ultimate finding that Petitioner did not establish that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity (March 2014 and ongoing) when it removed her, despite the MSPB's reliance on an erroneous standard of review.
BACKGROUND
At the time of events giving rise to this matter, Petitioner worked as a GS-13 Equal Employment Opportunity (EEO) Manager with the Agency's Civil Rights Division in Alameda, California. On May 8, 2015, management rated Petitioner's performance at the "fails to meet" level in the core competency of "quality of work." On May 18, 2015, management issued Petitioner a notice of unsatisfactory performance, informed her that she had failed to meet the minimum standards for the core competency, and placed her on a 90-day performance improvement plan (PIP). On September 21, 2015, following the conclusion of the PIP period, management issued Petitioner a notice of proposed removal for unacceptable performance. On November 13, 2015, management issued Petitioner a decision to remove her, effective immediately.
Petitioner filed a mixed case appeal with the MSPB alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity when it removed her. On September 14, 2016, after a hearing, an MSPB Administrative Judge (AJ) issued an initial decision sustaining the unacceptable performance charge, finding no discrimination, and affirming Petitioner's removal.
In sustaining the unacceptable performance charge, the MSPB AJ found that the Agency proved by substantial evidence that Petitioner's performance in the core competency was unacceptable during the PIP period. Citing documentary and testimonial evidence, the MSPB AJ found five examples of how Petitioner failed to meet the core competency: (1) on May 20, 2015, she did not recognize the need to amend a settlement agreement where the parties had substantially modified a term of their agreement without formally amending the agreement to reflect the change; (2) on June 17, 2015, she submitted a counseling report that did not contain accurate data (names, dates, events) and required multiple revisions; (3) on June 30, 2015, she submitted a counseling plan that did not include the timeframe for interviewing the parties or witnesses, did not identify specific pertinent questions and areas of inquiry, and did not contain accurate event dates; (4) on July 14, 2015, she submitted a supplemental counseling report for a performance appraisal claim that did not specify the appraisal period and was not in the proper format; and (5) on July 28, 2015, she unnecessarily disclosed the identity of a complainant through email, thereby violating the complainant's privacy rights and exposing the Agency to liability.
In finding no discrimination, the MSPB AJ relied upon the MSPB's decision in Savage v. Department of the Army, 122 M.S.P.R. 612 (2015). In Savage, the MSPB, among other things, determined that the analytical framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), was not applicable to its proceedings. Savage, 122 M.S.P.R. at 637. In rejecting the McDonnell Douglas framework, the MSPB maintained that the MSPB's authority to adjudicate and remedy alleged violations of 42 U.S.C. § 2000e-16 is a matter of civil service law. Id.
In Petitioner's case, the MSPB AJ found that Petitioner did not prove that her prior protected EEO activity (March 2014 and ongoing) was a motivating factor in her removal. Specifically, the MSPB AJ cited Petitioner's own testimony that management viewed her work with disfavor from the time they first worked together, which pre-dated her protected EEO activity. In addition, although Petitioner asserted that a GS-7 EEO Specialist could corroborate her assertion that management held her to a higher standard than EEO Managers who had not engaged in protected EEO activity, the MSPB AJ found that there was nothing in the GS-7 EEO Specialist's testimony to show that management treated her differently than similarly situated employees who had not engaged in protected EEO activity.2 Moreover, the MSPB AJ found that management credibly testified that it was not upset about Petitioner's protected EEO activity and that the protected EEO activity played no role in its actions. In so finding, the MSPB AJ noted that she credited management's testimony based on her observations of management's testimony, the detailed and consistent nature of management's testimony, and the fact that nothing in the GS-7 EEO Specialist's testimony contradicted management's testimony.
On October 19, 2016, the MSPB AJ's initial decision became the MSPB's final decision. Petitioner then filed the instant petition.
ARGUMENTS IN PETITION
In her petition, Petitioner contends that the MSPB erred in finding no discrimination. Among other things, Petitioner argues that the MSPB did not properly analyze her discrimination claim pursuant to the appropriate legal standard. In addition, Petitioner argues that management was aware of her March 2014 protected EEO activity and that it removed her while the protected EEO activity was pending. Moreover, Petitioner argues that the MSPB should not have merely accepted management's self-serving testimony that it was not upset about her protected EEO activity.
STANDARD OF REVIEW
EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. § 1614.303 et seq. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. § 1614.305(c).
ANALYSIS AND FINDINGS
In Petitioner's case, we find that the MSPB AJ erred by not applying the McDonnell Douglas analysis in deciding Petitioner's claim of reprisal discrimination when the Agency removed her; we will analyze this case according to the McDonnell Douglas paradigm. We find, however, that the MSPB AJ correctly determined that Petitioner did not establish that the Agency discriminated against her as alleged.
To prevail in a disparate treatment claim absent direct evidence of discrimination, a petitioner must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. at 802-04. A petitioner carries the initial burden of establishing a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the petitioner bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Upon review of the record, we find that Petitioner did not show that the Agency subjected her to disparate treatment on the basis of reprisal. First, assuming, arguendo, that Petitioner established a prima facie case on the basis of reprisal, we find that the Agency articulated a legitimate, nondiscriminatory reason for removing her; namely, her unacceptable performance in the core competency of "quality of work" during the PIP period. Second, we find that Petitioner did not prove, by a preponderance of the evidence, that the Agency's articulated reason was a pretext for reprisal. Although Petitioner argues that management was aware of her protected EEO activity and removed her while that protected EEO activity was pending, we find that those facts are not sufficient to prove causation in this case. We emphasize that the MSPB specifically found that management's negative opinion of her work pre-dated her protected EEO activity and that management did not hold her to a higher standard than EEO Managers who had not engaged in protected EEO activity. Petitioner did not show that those MSPB findings are unsupported by the evidence in the record as a whole. Although Petitioner argues that the MSPB should not have credited management's testimony (about its lack of retaliatory intent), we accept the MSPB AJ's demeanor-based credibility determinations.3
The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Burdine, 450 U.S. at 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Accordingly, the Commission agrees with the MSPB's ultimate finding that Petitioner did not establish that her removal was based on reprisal for prior protected EEO activity.
CONCLUSION
Based upon a thorough review of the record, it is the decision of the Commission to CONCUR with the final decision of the MSPB finding no unlawful discrimination. For the reasons set forth herein, we conclude that the evidence in the record as a whole supports the MSPB's finding that Petitioner did not establish the affirmative defense of unlawful discrimination.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of 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.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
_2/14/17_________________
Date
2 The MSPB AJ also questioned how a GS-7 EEO Specialist would be in a position to have substantive knowledge about the quality of Petitioner's work.
3 An Administrative Judge's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, Ch. 9, § VI.B.2 (Aug. 5, 2015)
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255 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A31535_r.txt | 01A31535_r.txt | TXT | text/plain | 10,840 | 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. | October 14, 2003 | Appeal Number: 01A31535
Complaint Allegations:
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
Legal Analysis:
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. | 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.
| [
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"29 C.F.R. § 1614.110",
"29 C.F.R. § 1614.503(a)",
"29 C.F.R. § 1614.503(g)",
"29 C.F.R. § 1614.409",
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256 | https://www.eeoc.gov/sites/default/files/decisions/2020_12_07/2019005269.pdf | 2019005269.pdf | PDF | application/pdf | 25,392 | Lyle P ., Complainant, v. Chad F. Wolf, Acting Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. | August 13, 2019 | Appeal Number: 0120162675
Complaint Allegations:
in his complaints was the same, with Complainant simply chang ing the vacancy announcement number . He noted Complainant made vague accusations of systemic discrimination on such a wide variety of protected basses t hat it strains credulity that he believed that in each case he was non -selected on the basis of discrimination or retaliation. After Complainant lost his security clearance, the AJ found the pace of his EEO complaints increased considerably , suggesting with the other circumstances discussed , that he had “ weaponized the EEO process ” as a means of “ retaliating ” against the A gency and with the hope overburdening its EEO office to achieve another default judgment sanction. Based on all these factors, the AJ dismissed the ten consolidated complaints before him for abuse of process pursuant to 29 C.F.R. § 1614.107(a)(9). However, in addition to dismissing the EEO complaints before him for abuse of the EEO process, the AJ also ordered that all of Complainant’s pending “claims” in the EEO administrative process against the Agency be dismissed . The AJ also issued an order barring Complainant indefinitely from filing any further EEO complaints against any federal agency. In doing this, the AJ added that Complainant has a long history of filing EEO complaints against numerous federal agencies . In its August 13, 2019 final order , the Agency implemented the portions of the AJ’s order dismissing the ten consolidated complaints before him for abuse of proces s under 29 C.F.R. § 1614.107(a)(9), as well as dismissing all his other pending “complaints ” against the Agency. But it declined to implement the portion of the AJ’s decision barring Complainant from filing any EEO complaints in the future. It reasoned that this bar was unprecedented and contra ry to the Commission’s policy of preserving a complainant’s rights in the EEO process when possible . On appeal, Complainant argues that filing EEO complaints on 35 non- selections is insufficient to consti tute an abuse of the EEO process. He contends that at the referenced teleconference, the AJ raised his voice , berated him, and engaged in a racist rant using hateful words toward him . He accused the AJ of being a “white supremacist ” and “hate monster ” who needs a psychiatric evaluation. Complainant does not identify the words allegedly spoken by the AJ. 3 In Marquis K. v. DHS (ICE) , EEOC Appeal N o. 020171667 (Aug. 23, 2017), the Commission found that it did not have jurisdiction over the Agency allegedly harassing, condescending, and making accusatory remarks at a hearing on Complainant’s clearance because once statements gathered during the inves tigation are included in a security clearance investigative report, they are squarely within the rubric of a security clearance determination and, accordingly, beyond the Commission's jurisdiction. In response to Complainant’s appeal, Agency counsel, in contradiction to the final Agency order argues that the AJ’s order barring Complainant from filing EEO complaints with any agency in the future should be upheld.4
Background:
Complainant was employed in various positions and locations by the Agency. Starting in January 2016, he w as a Deportation Officer, GS -1801- 13, at the Enforcement and Removal Operations
office in Houston, Texas , until retiring on July 30, 2016.
Between February 19 and November 29, 2016, Complainant filed multiple equal employment
opportunity (EEO) complaints alleging that the Agency discriminated against him based on his race (Asian), sex (male), religion (Budd hist), color (dark- skinned), age (51), and reprisal for prior
protected EEO activity when:
1. On January 28, 2016, he learned he was not selected for the position of Detention and
Deportation Officer (DDO) , GS -1801- 13, vacancy announcement number (Vac. Ann.)
LAG -ERO -1534141- MD-0531, for which he was found eligible.
2. On January 15, 2016, he learned he was not selected for the position of Supervisory DDO ,
GS-1801- 13, Vac. Ann. LAG -FAO- 1515464 -SD-794, for which was found eligible.
3. On November 25, 2015, he learned he was not selected for the position of DDO , GS-1801 -
13, Vac. Ann. LAG -FCH -1529489- DM-312, for which was found eligible.
4. On November 23, 2015, he learned he was not selected for the position of DDO , GS-1801 -
13, Vac. Ann. LAG -FAO -1514708- SD-791, for which he was found eligible.
5. On November 5, 2015, he learned he was not selected for the position of DDO , GS-1801-
13, Vac. Ann. LAG -FDN -1473344- MB-51, for which he was found eligible.
6. On or about January 2016, he was not selected for the position of Supervisory D DO, GS -
1801- 13, Vac. Ann. LAG -ERO - 1553493- DN-010) in Williston, Vermont.
7. On March 29, 2016, he was notified he was not selected for the position of DDO, Vac.
Ann. LAG - ER0 -1426085- BB-112 in Williston, V ermont .
8. On April 21, 2016, he was notified he was not selected for the position of Supervisory
DDO, GS -1801- 13, Vac. Ann. LAG -FAT -1624616- RJS-023, in Savannah, GA .
9. On April 21, 2016, he was notified that he was not selected for the position of Supervisory
DDO, GS - 1801- 13, SDDO, Vac. Ann. LAG -FSD-1652985- SD-826 in San Diego, CA .
10. On April 22, 2016, he was notified he was not selected for the position of Supervisory
DDO, GS - 1801- 13, Vac. Ann. LAG - FSD-1615631- SD-823 in Otay, C alifornia.
11. On April 27, 2016, he was notified he was not select ed for the position of Supervisory
DDO, GS -1801- 13, Vac. Ann. LAG - FBV -1653433- SD-828 in Champlain, N ew Y ork.
12. On April 27, 2016, he was notified he was not selected for the position of Supervisory
DDO, GS-1801- 13, SDDO, Vac. Ann. LAG - FDA -1630403- LMA -523 in Amarillo, T exas.
13. On April 27, 2016, he was notified he was not selected for the position of Supervisory
DDO, GS - 1801- 13, Vac. Ann. LAG - FDA -1630403- LMA -523 in Lubbock, T exas.
14. On April 28, 2016, he was notified he was not selected for the position of DDO, GS -1801-
13, Vac. Ann. LAG -ER0-1237577- LKS -180, in Washington, DC .
15. On May 2, 2016, he was notified he was not selected for the position of Supervisory DDO,
GS-180l-14, Vac. Ann. LAG- ER0-1657052- DN-038 in Williston, V ermont.
16. On May 2, 2016, he was notified he was not selected for the position of Supervisory DDO
(Section Chief), GS -1801-14, Vac. Ann. LAGER0 - 1655264- DN-035 in Laguna Niguel,
California.
17. On May 2, 2016, he was notified he was not selected for the positio n of Supervisory DDO
(Section Chief), GS -1801-14, Vac. Ann. No. LAGER0 - 1661608- DN-042 in Williston,
Vermont .
18. On May 3, 2016, he was notified he was not selected for the position of Supervisory DDO
(AFOD), GS-1801- 14, Vac. Ann. LAG -FDT -1665284- APO in Columbus, O hio.
19. On May 5, 2016, he was notified he was not selected for the position of DDO, GS -1801-
13/14, Vac. Ann. LAG -ER0-1327812- BTR -140 in Washington, DC .
20. On May 10, 2016, he was notified he was not selected for the position of Supervisory DDO,
GS-1801- 13, Vac. Ann. LAG - FCH -1635488- AE-l41, in Indianapolis, I ndiana .
21. On May 16, 2016, he was notified he was not selected for the position of Supervisory DDO
(AFOD), GS-1801- 13, Vac. Ann. LAG -FDA -1694784- LMA -531 in Oklahoma City,
Oklahoma .
22. On May 18, 2016, he was notified he was not selected for the position of Supervisory DDO
(Unit Chief), GS -1801- 15, Vac. Ann. LAGER0 -1691112- MD-0572 in Washington, DC .
23. On June 16, 2016, he was notified he was not selected for the position of Supervisory DDO,
GS-1801- 13, Vac. Ann. LAG - FPH -1674654- RJS -039 in Phoenix, A rizona .
24. On April 11, 2016, he was notified he was not selected for the position of Deportation
Liaison Officer , GS-1801- 14, Vac. Ann. DAL -OIA-1625492- MP-SDL in Vienna.
25. On May 23, 2016, t he Laguna Service Center notified him he did not meet the education
and/or experience requirements for the position of Supervisory D DO (AFOD), GS-1801-
14, in Austin, Texas, and would not receive further consideration under Vac. Ann. LAG -
FAO -1686833 -AP-014.
26. On June 10, 2016, he was notified he was not selected for the position of DDO, GS -1801-
13/14, Vac. Ann. LAG -ERO -1302491- BTR -129 in Washington, DC.
27. On June 12, 2016, he became aware he was not selected for the position of DDO, GS -1801 -
13/14, Vac. Ann. LAG -ERO -1263339- LKS -190 in Washington, DC.
28. On July 5, 2016, he became aware he was not selected for the position of Detention Liaison
Officer, GS -1801- 14, Vac. Ann. DAL -OIA-1715007- MP-SDL in Warsaw, Poland.
29. On July 5, 2016, t he Laguna Service Center notified him he self -certified his ineligibility
on the qualification and/or eligibility requirements for the position of Supervisory DDO
(Section Chief) , GS-1801 -14, Vac. Ann. LAG -ERO -1716735- DN-052 in Washington, DC.
30. On July 6, 2016, he learned he was not selected for the position of Supervisory DDO, GS -
1801- 13, Vac. Ann. LAG -FDT -1688190- AP-015 in Detroit, M ichigan .
31. On August 1, 2016 h e learned he was not selected f or the position of D DO, GS-1801- 13/14,
Vac. Ann. LAG -ERO -1682029- DN-046 in Washington, DC.
32. On August 29, 2016, the Laguna Service Center notified him that he self-certified his
ineligibility on the qualification and/or eligibility requirements for the position of
Supervisory DDO (AFOD), GS-1801- 14, V ac. Ann. LAG -FPH-1754958- RJS-056 in
Phoenix, A rizona .
33. On September 22, 2016, he learned he was not selected for four vacancies for the position
of DDO, GS -1801- 13, Vac. Ann. LAG -ERO -1508376- BB-146 in Baltimore, M aryland ,
Los Angeles, C alifornia , San Antonio, T exas, and Miami, F lorida .
34. On September 23, 2016, he learned he was not selected for the position of DDO , GS-1801-
13, Vac. Ann. LAG -ERO -1656692- DN-037 in Washington, DC.
35. On September 23, 2016, he learned he was not selected for the position of DDO , GS-1801-
14, Vac. Ann. LAG -ERO -1722886- BB-165 in Mesa A rizona .
The Agency investigated these claims and Complainant requested a hearing before an EEOC AJ.
At a prehearing status conference, the AJ gathered some i nformation from Complainant on the
number of prior EEO complaints he had filed and the issues involved. The AJ then ordered
Complainant t o produce information related to all his EEO cases .
During this same time period, the AJ order ed the Agency to file a motion to dismiss Complainant’s
complaints for abuse of process pursuant to 29 C.F.R. § 1614.107(a)(9), and for Complainant to
respond. This regulation requires an a gency to dismiss EEO complaints that are part of a clear
pattern of misuse of the EEO process for a purpose other than the prevention and elimination of
employment discrimination. As ordered, the Agency filed a motion to dismiss , and asked that
Complainant’s complaint pending before the AJ, as w ell as any other pending complaints, be
dismissed .
The AJ granted the Agency’s motion to dismiss. In his decision, the AJ recounted that he spent
significant hours untangling Complainant’s EEO history and uncovered that his complaints raise
four non- selections he alleged in prior EEO complaints that were previously before an EEOC
hearings unit – with the only difference being that he changed the year he allegedly learned of
them from 2015 to 2016. In the prior case, in September 2015, an AJ issued a default judgment
against the Agency for failure to timely produce the EEO investigation . The parties entered into a
settlement agreement in December 2015, resolving the Agency’s obligations under the default judgment order. This included temporar ily selecting and promoting Complainant on paper to a
GS-14, step 1 position for nearly four years and thereafter permanent ly promoti ng him from his
GS-12 position to a GS-13 position in Houston, Texas (which started in January 2016) , and back
pay.
The AJ recounted four different non-selections in the consolidated complaints that Complainant
alleged he was notified or learned of between April 2016 – June 2016, but application closing dates
for two were in December 2014 and February 2015, and the non-selections for the other s occurred
in March and May 2015. The AJ suspected it was unlikely the Agency would have waited as long
as Complainant alleged to notify him of these non- selections and it was likely, given his prior
practice, that he would have filed EEO complaints regarding them. The AJ recounted tha t because
of this suspicion, he reviewed 4,437 pages of documents in the consolidated complaints record and numerous records in some other cases involving hundreds of more pages , and this revealed
Complainant’s attempt to adjudicate the four non-selections that he already settled. Th e AJ
indicated he did not have the time and resources to review more claims filed by Complainant in
other cases to determine if more non-selections in the c onsolidated complaints were also already
adjudicated.
The AJ determined that Complainant’s claim of systematic discrimination on a variety of protected
bases w as widely speculative in nature. For example, Complainant contended that the Agency only
promotes Catholics because its headquarters human resource office is made up mostly of them ,
without any evidence they were Catholic or how t hey knew his religion. The AJ found that a fter
Complainant lost his security clearance in January 2016, he filed many EEO complaints regarding
2 In June 2016, Complainant filed a notice of breach regarding his back pay. In EEOC Appeal No.
0120162675 (Aug. 23, 2017), request for reconsideration denied, EEOC Request No. 0520180081
(Mar. 22, 2018), the Commission found that Complainant did not show the Agency miscalculated back pay.
non-selections for which he was unqualified because he lacked the requisite clearance.3 He also
filed EE O complaints on non-selections for positions that were all over the country and overseas ,
many of which would not have res ulted in a promotion. Complainant did this after settling a case
where he specifically negotiated a transfer to Houston, which suggest s that he filed multiple non-
selection complaints without any intent to take the position if he were selected. He continue d to
reside in Houston after retiring. The AJ further found Complainant's claims lacked specificity in
that he often did not know the identity of either the selecting officials or the selectees . The AJ
noted that much of the language in his complaints was the same, with Complainant simply
chang ing the vacancy announcement number . He noted Complainant made vague accusations of
systemic discrimination on such a wide variety of protected basses t hat it strains credulity that he
believed that in each case he was non -selected on the basis of discrimination or retaliation. After
Complainant lost his security clearance, the AJ found the pace of his EEO complaints increased
considerably , suggesting with the other circumstances discussed , that he had “ weaponized the EEO
process ” as a means of “ retaliating ” against the A gency and with the hope overburdening its EEO
office to achieve another default judgment sanction. Based on all these factors, the AJ dismissed
the ten consolidated complaints before him for abuse of process pursuant to 29 C.F.R. §
1614.107(a)(9).
However, in addition to dismissing the EEO complaints before him for abuse of the EEO process, the AJ also ordered that all of Complainant’s pending “claims” in the EEO administrative process
against the Agency be dismissed . The AJ also issued an order barring Complainant indefinitely
from filing any further EEO complaints against any federal agency. In doing this, the AJ added
that Complainant has a long history of filing EEO complaints against numerous federal agencies .
In its August 13, 2019 final order , the Agency implemented the portions of the AJ’s order
dismissing the ten consolidated complaints before him for abuse of proces s under 29 C.F.R. §
1614.107(a)(9), as well as dismissing all his other pending “complaints ” against the Agency. But
it declined to implement the portion of the AJ’s decision barring Complainant from filing any EEO
complaints in the future. It reasoned that this bar was unprecedented and contra ry to the
Commission’s policy of preserving a complainant’s rights in the EEO process when possible .
On appeal, Complainant argues that filing EEO complaints on 35 non- selections is insufficient to
consti tute an abuse of the EEO process. He contends that at the referenced teleconference, the AJ
raised his voice , berated him, and engaged in a racist rant using hateful words toward him . He
accused the AJ of being a “white supremacist ” and “hate monster ” who needs a psychiatric
evaluation. Complainant does not identify the words allegedly spoken by the AJ.
3 In Marquis K. v. DHS (ICE) , EEOC Appeal N o. 020171667 (Aug. 23, 2017), the Commission
found that it did not have jurisdiction over the Agency allegedly harassing, condescending, and making accusatory remarks at a hearing on Complainant’s clearance because once statements gathered during the inves tigation are included in a security clearance investigative report, they are
squarely within the rubric of a security clearance determination and, accordingly, beyond the Commission's jurisdiction.
In response to Complainant’s appeal, Agency counsel, in contradiction to the final Agency order
argues that the AJ’s order barring Complainant from filing EEO complaints with any agency in
the future should be upheld.4
Legal Analysis:
the Commission found that Complainant did not show the Agency miscalculated back pay.
non-selections for which he was unqualified because he lacked the requisite clearance.3 He also
filed EE O complaints on non-selections for positions that were all over the country and overseas ,
many of which would not have res ulted in a promotion. Complainant did this after settling a case
where he specifically negotiated a transfer to Houston, which suggest s that he filed multiple non-
selection complaints without any intent to take the position if he were selected. He continue d to
reside in Houston after retiring. The AJ further found Complainant's claims lacked specificity in
that he often did not know the identity of either the selecting officials or the selectees . The AJ
noted that much of the language in his complaints was the same, with Complainant simply
chang ing the vacancy announcement number . He noted Complainant made vague accusations of
systemic discrimination on such a wide variety of protected basses t hat it strains credulity that he
believed that in each case he was non -selected on the basis of discrimination or retaliation. After
Complainant lost his security clearance, the AJ found the pace of his EEO complaints increased
considerably , suggesting with the other circumstances discussed , that he had “ weaponized the EEO
process ” as a means of “ retaliating ” against the A gency and with the hope overburdening its EEO
office to achieve another default judgment sanction. Based on all these factors, the AJ dismissed
the ten consolidated complaints before him for abuse of process pursuant to 29 C.F.R. §
1614.107(a)(9).
However, in addition to dismissing the EEO complaints before him for abuse of the EEO process, the AJ also ordered that all of Complainant’s pending “claims” in the EEO administrative process
against the Agency be dismissed . The AJ also issued an order barring Complainant indefinitely
from filing any further EEO complaints against any federal agency. In doing this, the AJ added
that Complainant has a long history of filing EEO complaints against numerous federal agencies .
In its August 13, 2019 final order , the Agency implemented the portions of the AJ’s order
dismissing the ten consolidated complaints before him for abuse of proces s under 29 C.F.R. §
1614.107(a)(9), as well as dismissing all his other pending “complaints ” against the Agency. But
it declined to implement the portion of the AJ’s decision barring Complainant from filing any EEO
complaints in the future. It reasoned that this bar was unprecedented and contra ry to the
Commission’s policy of preserving a complainant’s rights in the EEO process when possible .
On appeal, Complainant argues that filing EEO complaints on 35 non- selections is insufficient to
consti tute an abuse of the EEO process. He contends that at the referenced teleconference, the AJ
raised his voice , berated him, and engaged in a racist rant using hateful words toward him . He
accused the AJ of being a “white supremacist ” and “hate monster ” who needs a psychiatric
evaluation. Complainant does not identify the words allegedly spoken by the AJ.
3 In Marquis K. v. DHS (ICE) , EEOC Appeal N o. 020171667 (Aug. 23, 2017), the Commission
found that it did not have jurisdiction over the Agency allegedly harassing, condescending, and making accusatory remarks at a hearing on Complainant’s clearance because once statements gathered during the inves tigation are included in a security clearance investigative report, they are
squarely within the rubric of a security clearance determination and,
Final Decision:
accordingly, beyond the Commission's jurisdiction. In response to Complainant’s appeal, Agency counsel, in contradiction to the final Agency order argues that the AJ’s order barring Complainant from filing EEO complaints with any agency in the future should be upheld.4 ANALYSIS AND FINDINGS Abuse of process is defined as a clear pattern of misuse of the process for ends other than that which it was designed to accomplish. T he Commission has a strong policy in favor of preserving a complainant’s EEO rights whenever possible. Strict criteria have been established by the Commission to determine whether a complaint, or a number of consolidated complaints, should be dismissed for this reason under 29 C.F.R. § 1614.107(a)(9) . The occasions in which application of the standards are appropriate must be rare. This requires an analysis of whether the complainant evidences an ulterior purpose to abuse or misuse the EEO process. N umerous complaint filings alone is not a sufficient basis for determining that there has been an abuse of the process. But multiple filings on the same issues, lack of specificity in the allegations, and the filing of complaints on allegations previously raised, may be considered in deciding whether a complainant has engaged in a pattern of abuse of the EEO process. E EOC Management Directive for 29 C.F.R. Part 1614 (EEO -MD-110) (Aug. 5, 2015) , at 5 -20. While we agree with Complainant that without more the filing of EEO complaints on 35 non- selections is insufficient to constitute an abuse of the EEO process , the AJ’s finding was based on more than th at. Rather, the AJ determined Complainant abused the EEO process in two main two ways – by deliberately relitigating claims already litigated and closed with substantial relief , and by overwhelming the Agency’s in- house EEO machinery to force another default judgment against the Agency . Based on our independent review of the record, we find that the AJ properly dismissed Complainant’s ten consolidated complaints before him for abuse of process , pursuant to 29 C.F.R. § 1614.107(a)(9), for the same reasons recounted above by the AJ . In doing so, we find significant similarities between this situation and other cases where we have found abuse of process . See, e.g. , Abell v. Dep't of Interior , EEOC Appeal No. 01A33023 (May 13, 2004) (finding abuse of process where complainant filed 40 complaints of non- selection with no intention to take the job); A. Stoyanov v. Dep't of the Navy , EEOC Appeal Nos. 01A60843, 01A61391, 01A61781, 01A62205, 01A62852 (Aug. 31, 2006) (finding abuse of process where complainant filed 25 complaints over non-selections where co mplainant was ineligible for positions for which he applied); Y. Stoyanov v. Dep't of the Navy , EEOC Appeal Nos. 0120110604, 0120111454, 0120111991 (Apr. 20, 2011); Y. Stoyanov v. Dep't of the Navy , EEOC Appeal Nos. 0120113142, 0120113817, 0120114019 Dec. 6, 2011); Y. Stoyanov v. Dep't of the Navy , EEOC Appeal No. 0120100479 (Dec. 30, 2011) (finding abuse of process where complainant filed seven complaints over numerous non- selections where complainant was ineligible for the positions for which he applied). It should be noted that, 4 We decline to consider th is argument because we assum e the final Agency order, issued by the Agency ’s EEO function, speaks for the Agency on this issue. in all these cited cases, only the specific complaints at issue were dismissed, not other/future complaints. Here, the AJ also dismissed all Complainant’s EEO “claims” pending with the Agency not before the AJ in this case and enjoined him from filing future EEO complaints with any federal agency. We find these orders go beyond t he AJ’s authority under 29 CFR §1614.107(a)(9) and §1614.109(b).5 The Agency is free to procedurally dismiss cases pending before it at the pre - hearing stage for any of the reasons enumerated in 29 C.F.R. § 1614.107(a) with appropriate appeal rights. CONCLUSION The Agency’s final order implementing the AJ’s decision to dismiss Complainant’s consolidated EEO complaints for abuse of process is AFFIRMED. | Lyle P .,
Complainant,
v.
Chad F. Wolf,
Acting Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Appeal No . 2019005269
Hearing Nos. 460-2018-00272X, 460-2019-00034X, 460-2019-00035X, 460-2019-00036X,
460-2019-00037X, 460-2019-00038X, 460-2019-00039X, 460-2019-00040X, 460-2019-
00041X, 460-2019-00042X
Agency No s. HS -ICE-26326-2016, HS- ICE-25747-2016, HS- ICE-25522-2016, HS- ICE-26477-
2016, HS- ICE-26478-2016, HS- ICE-27231-2016, HS- ICE-27234-2016, HS- ICE-26976-2016,
HS-ICE-27230-2016, HS- ICE-00115-2017
DECISION
After issuing its August 13, 2019 final order, both the Agency and Complainant filed appeal s with
the Equal Employment Opportunity Commission (EEOC or Commission) pursuant to 29 C.F.R. §
1614.110(a) and .403(a) , from the decision of an EEOC Administrative Judge (AJ) , dated July 8,
2019, that dismissed the above-captioned consolidated complaints alleging unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42
U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq.
BACKGROUND
Complainant was employed in various positions and locations by the Agency. Starting in January 2016, he w as a Deportation Officer, GS -1801- 13, at the Enforcement and Removal Operations
office in Houston, Texas , until retiring on July 30, 2016.
Between February 19 and November 29, 2016, Complainant filed multiple equal employment
opportunity (EEO) complaints alleging that the Agency discriminated against him based on his race (Asian), sex (male), religion (Budd hist), color (dark- skinned), age (51), and reprisal for prior
protected EEO activity when:
1. On January 28, 2016, he learned he was not selected for the position of Detention and
Deportation Officer (DDO) , GS -1801- 13, vacancy announcement number (Vac. Ann.)
LAG -ERO -1534141- MD-0531, for which he was found eligible.
2. On January 15, 2016, he learned he was not selected for the position of Supervisory DDO ,
GS-1801- 13, Vac. Ann. LAG -FAO- 1515464 -SD-794, for which was found eligible.
3. On November 25, 2015, he learned he was not selected for the position of DDO , GS-1801 -
13, Vac. Ann. LAG -FCH -1529489- DM-312, for which was found eligible.
4. On November 23, 2015, he learned he was not selected for the position of DDO , GS-1801 -
13, Vac. Ann. LAG -FAO -1514708- SD-791, for which he was found eligible.
5. On November 5, 2015, he learned he was not selected for the position of DDO , GS-1801-
13, Vac. Ann. LAG -FDN -1473344- MB-51, for which he was found eligible.
6. On or about January 2016, he was not selected for the position of Supervisory D DO, GS -
1801- 13, Vac. Ann. LAG -ERO - 1553493- DN-010) in Williston, Vermont.
7. On March 29, 2016, he was notified he was not selected for the position of DDO, Vac.
Ann. LAG - ER0 -1426085- BB-112 in Williston, V ermont .
8. On April 21, 2016, he was notified he was not selected for the position of Supervisory
DDO, GS -1801- 13, Vac. Ann. LAG -FAT -1624616- RJS-023, in Savannah, GA .
9. On April 21, 2016, he was notified that he was not selected for the position of Supervisory
DDO, GS - 1801- 13, SDDO, Vac. Ann. LAG -FSD-1652985- SD-826 in San Diego, CA .
10. On April 22, 2016, he was notified he was not selected for the position of Supervisory
DDO, GS - 1801- 13, Vac. Ann. LAG - FSD-1615631- SD-823 in Otay, C alifornia.
11. On April 27, 2016, he was notified he was not select ed for the position of Supervisory
DDO, GS -1801- 13, Vac. Ann. LAG - FBV -1653433- SD-828 in Champlain, N ew Y ork.
12. On April 27, 2016, he was notified he was not selected for the position of Supervisory
DDO, GS-1801- 13, SDDO, Vac. Ann. LAG - FDA -1630403- LMA -523 in Amarillo, T exas.
13. On April 27, 2016, he was notified he was not selected for the position of Supervisory
DDO, GS - 1801- 13, Vac. Ann. LAG - FDA -1630403- LMA -523 in Lubbock, T exas.
14. On April 28, 2016, he was notified he was not selected for the position of DDO, GS -1801-
13, Vac. Ann. LAG -ER0-1237577- LKS -180, in Washington, DC .
15. On May 2, 2016, he was notified he was not selected for the position of Supervisory DDO,
GS-180l-14, Vac. Ann. LAG- ER0-1657052- DN-038 in Williston, V ermont.
16. On May 2, 2016, he was notified he was not selected for the position of Supervisory DDO
(Section Chief), GS -1801-14, Vac. Ann. LAGER0 - 1655264- DN-035 in Laguna Niguel,
California.
17. On May 2, 2016, he was notified he was not selected for the positio n of Supervisory DDO
(Section Chief), GS -1801-14, Vac. Ann. No. LAGER0 - 1661608- DN-042 in Williston,
Vermont .
18. On May 3, 2016, he was notified he was not selected for the position of Supervisory DDO
(AFOD), GS-1801- 14, Vac. Ann. LAG -FDT -1665284- APO in Columbus, O hio.
19. On May 5, 2016, he was notified he was not selected for the position of DDO, GS -1801-
13/14, Vac. Ann. LAG -ER0-1327812- BTR -140 in Washington, DC .
20. On May 10, 2016, he was notified he was not selected for the position of Supervisory DDO,
GS-1801- 13, Vac. Ann. LAG - FCH -1635488- AE-l41, in Indianapolis, I ndiana .
21. On May 16, 2016, he was notified he was not selected for the position of Supervisory DDO
(AFOD), GS-1801- 13, Vac. Ann. LAG -FDA -1694784- LMA -531 in Oklahoma City,
Oklahoma .
22. On May 18, 2016, he was notified he was not selected for the position of Supervisory DDO
(Unit Chief), GS -1801- 15, Vac. Ann. LAGER0 -1691112- MD-0572 in Washington, DC .
23. On June 16, 2016, he was notified he was not selected for the position of Supervisory DDO,
GS-1801- 13, Vac. Ann. LAG - FPH -1674654- RJS -039 in Phoenix, A rizona .
24. On April 11, 2016, he was notified he was not selected for the position of Deportation
Liaison Officer , GS-1801- 14, Vac. Ann. DAL -OIA-1625492- MP-SDL in Vienna.
25. On May 23, 2016, t he Laguna Service Center notified him he did not meet the education
and/or experience requirements for the position of Supervisory D DO (AFOD), GS-1801-
14, in Austin, Texas, and would not receive further consideration under Vac. Ann. LAG -
FAO -1686833 -AP-014.
26. On June 10, 2016, he was notified he was not selected for the position of DDO, GS -1801-
13/14, Vac. Ann. LAG -ERO -1302491- BTR -129 in Washington, DC.
27. On June 12, 2016, he became aware he was not selected for the position of DDO, GS -1801 -
13/14, Vac. Ann. LAG -ERO -1263339- LKS -190 in Washington, DC.
28. On July 5, 2016, he became aware he was not selected for the position of Detention Liaison
Officer, GS -1801- 14, Vac. Ann. DAL -OIA-1715007- MP-SDL in Warsaw, Poland.
29. On July 5, 2016, t he Laguna Service Center notified him he self -certified his ineligibility
on the qualification and/or eligibility requirements for the position of Supervisory DDO
(Section Chief) , GS-1801 -14, Vac. Ann. LAG -ERO -1716735- DN-052 in Washington, DC.
30. On July 6, 2016, he learned he was not selected for the position of Supervisory DDO, GS -
1801- 13, Vac. Ann. LAG -FDT -1688190- AP-015 in Detroit, M ichigan .
31. On August 1, 2016 h e learned he was not selected f or the position of D DO, GS-1801- 13/14,
Vac. Ann. LAG -ERO -1682029- DN-046 in Washington, DC.
32. On August 29, 2016, the Laguna Service Center notified him that he self-certified his
ineligibility on the qualification and/or eligibility requirements for the position of
Supervisory DDO (AFOD), GS-1801- 14, V ac. Ann. LAG -FPH-1754958- RJS-056 in
Phoenix, A rizona .
33. On September 22, 2016, he learned he was not selected for four vacancies for the position
of DDO, GS -1801- 13, Vac. Ann. LAG -ERO -1508376- BB-146 in Baltimore, M aryland ,
Los Angeles, C alifornia , San Antonio, T exas, and Miami, F lorida .
34. On September 23, 2016, he learned he was not selected for the position of DDO , GS-1801-
13, Vac. Ann. LAG -ERO -1656692- DN-037 in Washington, DC.
35. On September 23, 2016, he learned he was not selected for the position of DDO , GS-1801-
14, Vac. Ann. LAG -ERO -1722886- BB-165 in Mesa A rizona .
The Agency investigated these claims and Complainant requested a hearing before an EEOC AJ.
At a prehearing status conference, the AJ gathered some i nformation from Complainant on the
number of prior EEO complaints he had filed and the issues involved. The AJ then ordered
Complainant t o produce information related to all his EEO cases .
During this same time period, the AJ order ed the Agency to file a motion to dismiss Complainant’s
complaints for abuse of process pursuant to 29 C.F.R. § 1614.107(a)(9), and for Complainant to
respond. This regulation requires an a gency to dismiss EEO complaints that are part of a clear
pattern of misuse of the EEO process for a purpose other than the prevention and elimination of
employment discrimination. As ordered, the Agency filed a motion to dismiss , and asked that
Complainant’s complaint pending before the AJ, as w ell as any other pending complaints, be
dismissed .
The AJ granted the Agency’s motion to dismiss. In his decision, the AJ recounted that he spent
significant hours untangling Complainant’s EEO history and uncovered that his complaints raise
four non- selections he alleged in prior EEO complaints that were previously before an EEOC
hearings unit – with the only difference being that he changed the year he allegedly learned of
them from 2015 to 2016. In the prior case, in September 2015, an AJ issued a default judgment
against the Agency for failure to timely produce the EEO investigation . The parties entered into a
settlement agreement in December 2015, resolving the Agency’s obligations under the default judgment order. This included temporar ily selecting and promoting Complainant on paper to a
GS-14, step 1 position for nearly four years and thereafter permanent ly promoti ng him from his
GS-12 position to a GS-13 position in Houston, Texas (which started in January 2016) , and back
pay.
The AJ recounted four different non-selections in the consolidated complaints that Complainant
alleged he was notified or learned of between April 2016 – June 2016, but application closing dates
for two were in December 2014 and February 2015, and the non-selections for the other s occurred
in March and May 2015. The AJ suspected it was unlikely the Agency would have waited as long
as Complainant alleged to notify him of these non- selections and it was likely, given his prior
practice, that he would have filed EEO complaints regarding them. The AJ recounted tha t because
of this suspicion, he reviewed 4,437 pages of documents in the consolidated complaints record and numerous records in some other cases involving hundreds of more pages , and this revealed
Complainant’s attempt to adjudicate the four non-selections that he already settled. Th e AJ
indicated he did not have the time and resources to review more claims filed by Complainant in
other cases to determine if more non-selections in the c onsolidated complaints were also already
adjudicated.
The AJ determined that Complainant’s claim of systematic discrimination on a variety of protected
bases w as widely speculative in nature. For example, Complainant contended that the Agency only
promotes Catholics because its headquarters human resource office is made up mostly of them ,
without any evidence they were Catholic or how t hey knew his religion. The AJ found that a fter
Complainant lost his security clearance in January 2016, he filed many EEO complaints regarding
2 In June 2016, Complainant filed a notice of breach regarding his back pay. In EEOC Appeal No.
0120162675 (Aug. 23, 2017), request for reconsideration denied, EEOC Request No. 0520180081
(Mar. 22, 2018), the Commission found that Complainant did not show the Agency miscalculated back pay.
non-selections for which he was unqualified because he lacked the requisite clearance.3 He also
filed EE O complaints on non-selections for positions that were all over the country and overseas ,
many of which would not have res ulted in a promotion. Complainant did this after settling a case
where he specifically negotiated a transfer to Houston, which suggest s that he filed multiple non-
selection complaints without any intent to take the position if he were selected. He continue d to
reside in Houston after retiring. The AJ further found Complainant's claims lacked specificity in
that he often did not know the identity of either the selecting officials or the selectees . The AJ
noted that much of the language in his complaints was the same, with Complainant simply
chang ing the vacancy announcement number . He noted Complainant made vague accusations of
systemic discrimination on such a wide variety of protected basses t hat it strains credulity that he
believed that in each case he was non -selected on the basis of discrimination or retaliation. After
Complainant lost his security clearance, the AJ found the pace of his EEO complaints increased
considerably , suggesting with the other circumstances discussed , that he had “ weaponized the EEO
process ” as a means of “ retaliating ” against the A gency and with the hope overburdening its EEO
office to achieve another default judgment sanction. Based on all these factors, the AJ dismissed
the ten consolidated complaints before him for abuse of process pursuant to 29 C.F.R. §
1614.107(a)(9).
However, in addition to dismissing the EEO complaints before him for abuse of the EEO process, the AJ also ordered that all of Complainant’s pending “claims” in the EEO administrative process
against the Agency be dismissed . The AJ also issued an order barring Complainant indefinitely
from filing any further EEO complaints against any federal agency. In doing this, the AJ added
that Complainant has a long history of filing EEO complaints against numerous federal agencies .
In its August 13, 2019 final order , the Agency implemented the portions of the AJ’s order
dismissing the ten consolidated complaints before him for abuse of proces s under 29 C.F.R. §
1614.107(a)(9), as well as dismissing all his other pending “complaints ” against the Agency. But
it declined to implement the portion of the AJ’s decision barring Complainant from filing any EEO
complaints in the future. It reasoned that this bar was unprecedented and contra ry to the
Commission’s policy of preserving a complainant’s rights in the EEO process when possible .
On appeal, Complainant argues that filing EEO complaints on 35 non- selections is insufficient to
consti tute an abuse of the EEO process. He contends that at the referenced teleconference, the AJ
raised his voice , berated him, and engaged in a racist rant using hateful words toward him . He
accused the AJ of being a “white supremacist ” and “hate monster ” who needs a psychiatric
evaluation. Complainant does not identify the words allegedly spoken by the AJ.
3 In Marquis K. v. DHS (ICE) , EEOC Appeal N o. 020171667 (Aug. 23, 2017), the Commission
found that it did not have jurisdiction over the Agency allegedly harassing, condescending, and making accusatory remarks at a hearing on Complainant’s clearance because once statements gathered during the inves tigation are included in a security clearance investigative report, they are
squarely within the rubric of a security clearance determination and, accordingly, beyond the Commission's jurisdiction.
In response to Complainant’s appeal, Agency counsel, in contradiction to the final Agency order
argues that the AJ’s order barring Complainant from filing EEO complaints with any agency in
the future should be upheld.4
ANALYSIS AND FINDINGS
Abuse of process is defined as a clear pattern of misuse of the process for ends other than that which it was designed to accomplish. T he Commission has a strong policy in favor of preserving
a complainant’s EEO rights whenever possible. Strict criteria have been established by the Commission to determine whether a complaint, or a number of consolidated complaints, should be dismissed for this reason under 29 C.F.R. § 1614.107(a)(9) . The occasions in which application
of the standards are appropriate must be rare. This requires an analysis of whether the complainant
evidences an ulterior purpose to abuse or misuse the EEO process. N umerous complaint filings
alone is not a sufficient basis for determining that there has been an abuse of the process. But multiple filings on the same issues, lack of specificity in the allegations, and the filing of
complaints on allegations previously raised, may be considered in deciding whether a complainant has engaged in a pattern of abuse of the EEO process. E EOC Management Directive for 29 C.F.R.
Part 1614 (EEO -MD-110) (Aug. 5, 2015) , at 5 -20.
While we agree with Complainant that without more the filing of EEO complaints on 35 non-
selections is insufficient to constitute an abuse of the EEO process , the AJ’s finding was based on
more than th at. Rather, the AJ determined Complainant abused the EEO process in two main two
ways – by deliberately relitigating claims already litigated and closed with substantial relief , and
by overwhelming the Agency’s in- house EEO machinery to force another default judgment against
the Agency .
Based on our independent review of the record, we find that the AJ properly dismissed Complainant’s ten consolidated complaints before him for abuse of process , pursuant to 29 C.F.R.
§ 1614.107(a)(9), for the same reasons recounted above by the AJ . In doing so, we find significant
similarities between this situation and other cases where we have found abuse of process . See, e.g. ,
Abell v. Dep't of Interior , EEOC Appeal No. 01A33023 (May 13, 2004) (finding abuse of process
where complainant filed 40 complaints of non- selection with no intention to take the job); A.
Stoyanov v. Dep't of the Navy , EEOC Appeal Nos. 01A60843, 01A61391, 01A61781, 01A62205,
01A62852 (Aug. 31, 2006) (finding abuse of process where complainant filed 25 complaints over non-selections where co mplainant was ineligible for positions for which he applied); Y. Stoyanov
v. Dep't of the Navy , EEOC Appeal Nos. 0120110604, 0120111454, 0120111991 (Apr. 20, 2011);
Y. Stoyanov v. Dep't of the Navy , EEOC Appeal Nos. 0120113142, 0120113817, 0120114019
Dec. 6, 2011); Y. Stoyanov v. Dep't of the Navy , EEOC Appeal No. 0120100479 (Dec. 30, 2011)
(finding abuse of process where complainant filed seven complaints over numerous non- selections
where complainant was ineligible for the positions for which he applied). It should be noted that,
4 We decline to consider th is argument because we assum e the final Agency order, issued by the
Agency ’s EEO function, speaks for the Agency on this issue.
in all these cited cases, only the specific complaints at issue were dismissed, not other/future
complaints.
Here, the AJ also dismissed all Complainant’s EEO “claims” pending with the Agency not before
the AJ in this case and enjoined him from filing future EEO complaints with any federal agency.
We find these orders go beyond t he AJ’s authority under 29 CFR §1614.107(a)(9) and
§1614.109(b).5 The Agency is free to procedurally dismiss cases pending before it at the pre -
hearing stage for any of the reasons enumerated in 29 C.F.R. § 1614.107(a) with appropriate appeal
rights.
CONCLUSION
The Agency’s final order implementing the AJ’s decision to dismiss Complainant’s consolidated
EEO complaints for abuse of process is AFFIRMED. The Agency’s final order implementing the
AJ’s decision to dismiss all Complainant’s other pending EEO complaints against the Agency is
REVERSED . The Agency’s action in its final o rder to reject implementing the AJ’s order
enjoining Complainant from filing any further EEO complaints against any Agency (including
itself ) is A FFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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) calenda r days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD -110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
5 We note that EEOC Regulation 29 C.F.R. § 1614.109( e) states an AJ may disqualify an individual
from representing complainants or agencies in EEOC hearings who refuse to follow the orders of an AJ, or who otherwise engages in improper conduct . Disqualification applies to future hearings,
and imposing it involves special procedural requirements. Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO MD -110) (Aug. 5, 2015) , at 7 -32 to 7- 33.
This regulation only applies to representatives, not complainants.
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail w ithin five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). The request or opposit ion 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 F ILE A CIVIL ACTION (S0610)
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 ad ministrative processing of
your complaint .
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying t hese fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs
or appointment of an attorney directly to the court, not the Commission. The court has the
sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Co mplainant’s Right to File a Civil Action
for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
September 11, 2020
Date | [
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"29 C.F.R. § 1614.405",
"29 C.F.R. § 1614.109",
"29 C.F.R. § 1614.604",
"29 C.F.R. § 1614.403(g)",
"29 C.F.R. § 1614.604(c)",
"42 U.S.C. § 2000e",
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257 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01981368.txt | 01981368.txt | TXT | text/plain | 58,354 | Stanley Ness v. United States Postal Service 01981368 November 27, 2000 . Stanley Ness, Complainant, v. William J. Henderson, Postmaster General, (Midwest Area), United States Postal Service, Agency. | November 27, 2000 | Appeal Number: 01981368
Background:
The record reveals that during the relevant time, complainant was
employed as a PS-05 Bulk Mail Technician, in a limited duty assignment,
at the agency's Columbia, Missouri postal facility. After complainant
was denied injury compensation for a work-related injury, he requested
permanent light duty on May 24, 1994. The following day, complainant
verbally contacted the EEO office and requested counseling. On May 31,
1994, the facility Postmaster (PM) informed complainant that there
were no light duty positions available at the Main Post Office, and
forwarded his request to the Manager of Processing and Distribution at
the Plant facility (Plant Manager). PM also informed complainant that
his present position would be posted as vacant because he was unable to
perform the physical requirements of the position. On June 1, 1994,
the Plant Manager notified complainant that there were no light duty
positions at the Plant facility. Complainant contacted the EEO office,
alleging discrimination based on the above-referenced actions by agency
management. Complainant declined to extend the time period for EEO
counseling and subsequently requested a copy of his written complaint
from the EEO office. The agency EEO office did not provide complainant
a copy of his complaint.
On June 24, 1994, PM issued complainant a proposed notice of removal
for being [p]hysically unable to perform the duties of [the] position
for which [he] was hired. On July 5, 1994, complainant and his union
representative met with PM and verbally objected to the proposed notice
of removal. On July 18, 1994, PM informed complainant that the proposed
notice of removal was fully supported despite his verbal protestations,
and that he would be removed, effective August 1, 1994.
On July 21, 1994, complainant requested sick leave for July 27,
1994, and his supervisor conditioned its approval on his producing
medical documentation to substantiate the need for sick leave.
Although complainant refused to provide the requested information,
his supervisor ultimately approved complainant's sick leave request.
Complainant filed a grievance with the union concerning his termination,
which ultimately went to arbitration. On March 19, 1995, the Arbitrator
assigned to hear complainant's grievance (Arbitrator) issued a decision
finding that the agency improperly removed complainant from his position
without fulfilling its duty under the Collective Bargaining Agreement to
find him a light duty position. See In the Matter of the Arbitration
between United States Postal Service and American Postal Workers
Union, AFL-CIO, Grievance Case No. I9OC-4I-D 94067015 (March 19, 1995),
Investigative File, Exhibit 7. In his decision, the Arbitrator discussed
complainant's disability, Interstitial Cystitis,<2> its manifestations,
and impact on complainant's daily life.<3> In concluding that the agency
breached the collective bargaining agreement, the Arbitrator noted that
what went awry here was the process of searching for an appropriate
light duty position which [complainant] could perform within his medical
restrictions. The Arbitrator ordered the agency to re-examine whether
there was a light duty position within complainant's medical restrictions,
and also ordered the agency to provide complainant back pay and interest
from the date of his removal until the date the agency offered him a
light duty position, or the date the agency determined that there was
no light duty position within complainant's medical restrictions.
Four days later, complainant was offered a light duty position with the
agency as a PS-04 Markup Clerk, with off days on Sunday and Thursday
(his off days had previously been Saturday and Sunday), and with a saved
grade (PS-05) for two years. On April 19, 1995, the Arbitrator upheld
the agency's decision to offer complainant a Markup Clerk position,
despite complainant's contention that the agency's offer was arbitrary,
and that complainant should have been permitted to return to his prior
limited duty assignment.
On June 21, 1995, complainant requested a reasonable accommodation of
two consecutive days off, as he previously had, due to his Interstitial
Cystitis. Despite providing additional medical documentation in response
to PM's written request, complainant was never granted the requested
accommodation.<4> Even after complainant repeatedly requested the
above accommodation, he was informed that he had to provide medical
documentation, notwithstanding the fact that he had already provided
such documentation. See supra footnote 4.
The record also reveals that over the course of twenty months, complainant
drafted five letters to the EEO Manager seeking counseling and attempting
to initiate the formal complaint process. Complainant's appeal indicates
that the agency EEO office in the Gateway District received these letters,
as copies of certified receipts were included with most of the documents.
Notwithstanding complainant's numerous attempts to have his EEO matters
processed, none of those letters received a response from the Gateway
District EEO office. Ultimately, on January 31, 1996, complainant was
interviewed by an EEO Counselor. Notwithstanding complainant's voluminous
correspondence with the EEO Manager, the Counselor's Report only
referenced issues (1) and (3) and alluded to issue (2).<5> Complainant
submitted a formal EEO complaint on February 14, 1996. Complainant also
submitted a letter with the formal complaint. In this letter, complainant
set forth, in varying detail, the issues identified herein as (1) through
(10). The agency's investigative file does not contain the letter or
its numerous attachments, but complainant's appeal documents indicate
that the agency did receive the above-referenced documents.
The agency did not accept complainant's complaint until June 7, 1996,
and it only accepted issues (1) and (3), based on physical disability
(Interstitial Cystitis). The agency neither accepted nor dismissed
complainant's other claims, but informed complainant that if he objected
to the defined issues, he should provide [the agency] with sufficient
reasons to substantiate [complainant's] objections, in writing, within
seven (7) calendar days of receipt of this letter. On June 11, 1996,
complainant submitted a letter to the Gateway District EEO office,
wherein he disagreed with the limited scope of the agency's proposed
investigation. Complainant's lengthy letter was in large part a
restatement of his formal complaint, and he requested that the agency
address issues (2) and (4) through (10). Complainant also requested
compensation for pain and suffering. The agency did not respond to
complainant's letter.
On January 1, 1997, complainant received a copy of the investigative
file and requested a final agency decision (FAD). Additionally, and
having found the investigative file to be incomplete and inaccurate,
complainant attached his June 11, 1996, letter to his request for a FAD,
and renewed his request for the agency to investigate all of his claims
of discrimination. The agency did not include this correspondence in
the investigative file, though complainant provided evidence on appeal,
again in the form of a signed certified mail receipt dated January 7,
1997, that the Gateway District EEO office received this correspondence.
There is no record of any response by the agency.
Ten months later, on November 3, 1997, the agency issued its FAD.
In its FAD, the agency asserted that it had no record of any response
from complainant requesting a final agency decision, and proceeded
to address the issues herein identified as issues (1), (3) and (4).
Concerning issue (1), the agency concluded that by complying with
the Arbitrator's decision, it had fulfilled its obligation under the
Rehabilitation Act. Concerning issue (3), the agency concluded that
the removal issue was moot because the effects of complainant's removal
were completely eradicated by the Arbitrator's award. Concerning issue
(4), the agency concluded that the request for medical documentation
was consistent with provisions in its Collective Bargaining Agreement,
and because complainant was granted the requested sick leave without
having to provide the requested documentation, he experienced no harm.
Concerning complainant's retaliation claim, the FAD concluded, based on
PM's statement that he was unaware of complainant's EEO activity in 1987,
and the Plant Manager's testimony that he only had a vague recollection of
complainant's prior EEO activity, that complainant's prior EEO activity
had nothing to do with their actions, and that complainant therefore
did not establish the requisite nexus between the protected activity
and the alleged acts of retaliation.
On appeal, complainant submitted a detailed record and account of
his ongoing effort to address his claims through the EEO office.
As relief, complainant requested, among other things, any other relief
deemed appropriate. The agency stands on the record and argues that
complainant's inclusion of other issues that were not included in the
formal complaint should not be addressed on appeal. The agency requests
that the Commission affirm its FAD.
Legal Analysis:
the Commission affirm its FAD.
ANALYSIS AND FINDINGS
After a careful review of the record, the Commission will address each
of the issues, as set forth below:
Issues (1) through (3)
The Commission first notes that complainant requested compensatory
damages. The Commission has held that an agency must address the issue of
compensatory damages before it can dismiss a complaint for mootness. See
Rouston v. National Aeronautics and Space Administration, EEOC Request
No. 05970388 (March 18, 1999). Thus, the agency's dismissal of issue
(3) as moot was improper because it did not address compensatory damages
in its FAD.
We next note that the agency, in its final decision and on appeal,
did not dispute that complainant is an individual with a disability
as defined by the Rehabilitation Act.<6> Therefore, this issue is not
before the Commission on appeal, and need not be further discussed or
addressed. The dispositive issue in this case is whether the agency met
its responsibility to provide complainant with reasonable accommodations
to his disability in response to complainant's requests for permanent
light duty.
While the Rehabilitation Act does not require an employer to create a
light duty position as an accommodation, it does require an employer,
absent undue hardship, to accommodate a qualified individual with a
disability by restructuring a position through redistribution of marginal
functions which he cannot perform because of disability, or by reassigning
him to an equivalent existing vacancy for which he is qualified. Williams
v. United States Postal Service, EEOC Appeal No. 01973755 (September 11,
2000); Flowers v. United States Postal Service, EEOC Appeal No. 01984878
(September 9, 1999); Lowery v. United States Postal Service, EEOC Appeal
No. 01961852 (October 31, 1997); Ignacio v. United States Postal Service,
EEOC Petition No. 03840005 (September 4, 1984), aff'd, 30 M.S.P.R. 471
(Spec. Pan. February 7, 1986). The Commission has also stated that
the employer and the individual with a disability should engage in an
informal process to clarify what the individual needs and identify the
appropriate reasonable accommodation. See EEOC Enforcement Guidance on
Reasonable Accommodation and Undue Hardship under the Americans with
Disabilities Act, No. 915.002, (March 1, 1999), at p. 11. See also
Crider v. Department of Veterans Affairs, EEOC Request No. 05960632
(October 16, 1998).
The agency maintains that it fulfilled its duty under the Rehabilitation
Act when it reassigned complainant to a light duty position, pursuant to
the order of an Arbitrator, as stated herein. We disagree. The agency
has failed to provide any evidence that from the time of his initial
request, it engaged in the requisite, interactive process, and as
a result of such process, concluded that complainant could not be
reasonably accommodated in any position within the agency. It appears
clear that prior to the Arbitrator's order, the agency refused to
give meaningful consideration to complainant's request. Yet, when
the Arbitrator ordered the agency to seek a light duty position for
complainant within his medical restrictions, the agency was able to
locate and offer complainant a light duty position within four days of
the Arbitrator's decision. Moreover, even during that search, there is
no indication that the agency attempted to engage in any interactive
process with complainant or that it engaged in a good faith search
to identify a position in complainant's grade, and within his medical
restrictions. See Williams v. United States Postal Service, EEOC Appeal
No. 01973755 (September 11, 2000). Thus, while the agency may have
complied with the Arbitrator's order by reassigning complainant to a
vacant position ten months after he was denied a light duty position,
this action cannot insulate the agency from its failure to provide
complainant a reasonable accommodation at the onset. The Commission
therefore concludes that the agency violated the Rehabilitation Act by
failing to consider complainant's initial request for reassignment to
a light duty position, and ultimately terminating him.
The record also reveals that while complainant's position prior to his
termination entitled him to consecutive days off, he was placed in a
light duty position with non-consecutive days off. Shortly thereafter,
complainant requested consecutive days off as an accommodation in his new
light duty position. Upon receiving this request, PM requested medical
documentation to substantiate complainant's request. Complainant's
physician provided the documentation requested by PM. See supra
footnote 4. PM, however, refused to grant the requested accommodation.
The correspondence from PM provides no explanation as to why he did not
accept complainant's physician's note. There is no record that PM or
any other agency management official contested the sufficiency of the
information justifying the need for two consecutive days off. To the
contrary, it appears that PM did not believe complainant was impaired
to any substantial degree, and he felt that complainant merely wanted
his way and would reference his disability to avoid performing duties.
Based on the record, the Commission concludes that PM failed to provide
a reasonable accommodation when he refused to give complainant two
consecutive days off. On remand, the agency shall confer with complainant
in order to determine his various limitations, reexamine the available
vacancies within complainant's grade, and, absent any undue hardship,
place complainant in a position or arrange his existing schedule, such
that he has two consecutive days off. Such a process shall be conducted
in an expedited fashion, given the medical necessity for consecutive
days off evident in the record.
Concerning complainant's remedies, the Commission first notes that
complainant is entitled to back pay and interest at a PS-05 grade from
the time of his removal through to the time the agency identifies a
position in its facility, at a PS-05 level, which has consecutive days
off or otherwise is consistent with his present needs for a reasonable
accommodation, consistent with this decision and its accompanying ORDER.
The Commission acknowledges that complainant has been reinstated and
received back pay and interest pursuant to the Arbitrator's finding.
While the record indicates that complainant was placed in a PS-04
position, it had a saved grade of PS-05 for only two years. Thus, the
agency shall be responsible for providing complainant any additional
back-pay and interest due him at a PS-05 grade level, less earnings
received, until such time as the agency has offered complainant a PS-05
grade level position consistent with his disability and present needs
for an accommodation, or until such time as the agency determines that
there are no available positions at the PS-05 grade level which can
accommodate his present needs for an accommodation.
Additionally, the issue of compensatory damages was not addressed by
the agency. In this respect, we note that the Civil Rights Act of 1991,
Section 1977A(3) (42 U.S.C. § 1981(a)(3)), provides that compensatory
damages are not available for findings of discrimination under the
Rehabilitation Act for failure to accommodate where an agency has made
a good faith effort to reasonably accommodate a complainant. See
Morris v. Department of Defense, EEOC Appeal No. 01962984 (October 1,
1998) n.3. Here, however, the Commission finds that the agency did
not demonstrate that it engaged in a good faith effort to reasonably
accommodate complainant, and thus, compensatory damages are available to
the extent such damages are established on remand. See West v. Gibson,
527 U.S. 212 (1999).
In addition, there is no indication in the record that complainant
was credited with the appropriate accrued sick leave and annual leave,
or applicable seniority. Where discrimination is found, the injured
party is to be placed, as near as may be, in the situation he would have
occupied if the wrong had not been committed. Albemarle Paper Company
v. Moody, 422 U.S. 405, 418-19 (1975). On remand, the agency shall,
to the extent applicable, provide complainant with any applicable sick
and annual leave, seniority, or other benefits he would have earned
at a PS-05 grade level, between the date of complainant's termination
and the date of his reinstatement. Finally, the Commission, having
found discrimination based on physical disability, need not address
complainant's claim of retaliation, as the remedies available would not
be augmented, even with a finding of retaliation.
Issue (4)
The Commission agrees with the agency that complainant has not established
a prima facie case of disparate treatment based on disability or
retaliation because he was not aggrieved, as he experienced no present
harm to a term or condition of employment when the agency requested
medical documentation to support his request for sick leave. See 29
C.F.R. § 1614.107(a); Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994). In this respect, we note that the
relevant Collective Bargaining Agreement does not preclude a supervisor
from requesting medical documentation to substantiate a request for sick
leave, and complainant did not allege that he was treated differently from
non-disabled employees when he was asked to provide medical documentation
to support his request.<7> As complainant did not experience any adverse
treatment to a term or condition of employment, he fails to establish
a prima facie case of discrimination. We therefore AFFIRM as CLARIFIED
the agency's finding of no discrimination respecting this issue.
Issues (5) through (10)
Concerning the issues identified herein as issues (5) through (10), we
find the FAD did not address these claims because the agency failed to
properly accept, define and ultimately process complainant's complaint
dated February 14, 1996. As reflected in the background portion of this
decision, there are numerous claims in the complaint which the agency
never acknowledged or accepted in its letter of acceptance. The Gateway
District EEO office failed to include voluminous correspondence from
complainant in the complaint file which set forth these additional
claims, and apparently did not respond to complainant's correspondence
concerning these additional claims notwithstanding his continuous attempts
to have them addressed. The agency does not deny having received any
of the correspondence provided by complainant on appeal, and in fact,
complainant has established that the Gateway District EEO office received
his correspondence based on signed certified mail receipts included in
his appeal submission.
As the July 12, 1999 Preamble to the 1614 Regulations effective November
9, 1999 identified fragmentation of EEO complaints as a problem in the
Federal Sector, and based on the information available in the record in
conjunction with the agency's failure to process the above-referenced
issues, it would be inappropriate to remand any of the above-referenced
issues to the agency for further processing to the extent that the
Commission has adequate information in the complaint file upon which
to make a determination. | Stanley Ness v. United States Postal Service
01981368
November 27, 2000
.
Stanley Ness,
Complainant,
v.
William J. Henderson,
Postmaster General,
(Midwest Area),
United States Postal Service,
Agency.
Appeal No. 01981368
Agency No. 4I-630-1161-94
DECISION
Complainant timely initiated an appeal from a final agency decision (FAD)
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of reprisal (prior EEO activity)
and physical disability (Interstitial Cystitis), in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; and the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791, et
seq.<1> The appeal is accepted in accordance with 29 C.F.R. § 1614.405.
For the following reasons, the agency's decision is AFFIRMED as CLARIFIED
in part and REVERSED and REMANDED in part.
ISSUES PRESENTED
The issues on appeal are whether complainant established, by a
preponderance of the evidence, that he was discriminated against as
stated above when:
he was denied a permanent light duty assignment on May 31, 1994, and
June 1, 1994;
he was denied a reasonable accommodation of two consecutive days off
since June 21, 1995, and ongoing;
he was removed for being physically unable to perform the duties of the
position for which he was hired; and
he was asked to provide medical documentation to support his request
for sick leave on July 27, 1994; and
whether the agency failed to acknowledge, accept or process complainant's
claims that:
he was discriminated against due to his Disabled Veteran status;
agency management officials provided false testimony during complainant's
arbitration hearing;
he was charged three days as absent without leave (AWOL) when he was
injured on January 25, 1994;
the agency breached its settlement agreement with complainant in agency
case number 4-P-0027-9;
he was harassed by agency management officials; and
he was denied due process of law due to the dysfunctional EEO complaints
processing system in the Gateway District.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a PS-05 Bulk Mail Technician, in a limited duty assignment,
at the agency's Columbia, Missouri postal facility. After complainant
was denied injury compensation for a work-related injury, he requested
permanent light duty on May 24, 1994. The following day, complainant
verbally contacted the EEO office and requested counseling. On May 31,
1994, the facility Postmaster (PM) informed complainant that there
were no light duty positions available at the Main Post Office, and
forwarded his request to the Manager of Processing and Distribution at
the Plant facility (Plant Manager). PM also informed complainant that
his present position would be posted as vacant because he was unable to
perform the physical requirements of the position. On June 1, 1994,
the Plant Manager notified complainant that there were no light duty
positions at the Plant facility. Complainant contacted the EEO office,
alleging discrimination based on the above-referenced actions by agency
management. Complainant declined to extend the time period for EEO
counseling and subsequently requested a copy of his written complaint
from the EEO office. The agency EEO office did not provide complainant
a copy of his complaint.
On June 24, 1994, PM issued complainant a proposed notice of removal
for being [p]hysically unable to perform the duties of [the] position
for which [he] was hired. On July 5, 1994, complainant and his union
representative met with PM and verbally objected to the proposed notice
of removal. On July 18, 1994, PM informed complainant that the proposed
notice of removal was fully supported despite his verbal protestations,
and that he would be removed, effective August 1, 1994.
On July 21, 1994, complainant requested sick leave for July 27,
1994, and his supervisor conditioned its approval on his producing
medical documentation to substantiate the need for sick leave.
Although complainant refused to provide the requested information,
his supervisor ultimately approved complainant's sick leave request.
Complainant filed a grievance with the union concerning his termination,
which ultimately went to arbitration. On March 19, 1995, the Arbitrator
assigned to hear complainant's grievance (Arbitrator) issued a decision
finding that the agency improperly removed complainant from his position
without fulfilling its duty under the Collective Bargaining Agreement to
find him a light duty position. See In the Matter of the Arbitration
between United States Postal Service and American Postal Workers
Union, AFL-CIO, Grievance Case No. I9OC-4I-D 94067015 (March 19, 1995),
Investigative File, Exhibit 7. In his decision, the Arbitrator discussed
complainant's disability, Interstitial Cystitis,<2> its manifestations,
and impact on complainant's daily life.<3> In concluding that the agency
breached the collective bargaining agreement, the Arbitrator noted that
what went awry here was the process of searching for an appropriate
light duty position which [complainant] could perform within his medical
restrictions. The Arbitrator ordered the agency to re-examine whether
there was a light duty position within complainant's medical restrictions,
and also ordered the agency to provide complainant back pay and interest
from the date of his removal until the date the agency offered him a
light duty position, or the date the agency determined that there was
no light duty position within complainant's medical restrictions.
Four days later, complainant was offered a light duty position with the
agency as a PS-04 Markup Clerk, with off days on Sunday and Thursday
(his off days had previously been Saturday and Sunday), and with a saved
grade (PS-05) for two years. On April 19, 1995, the Arbitrator upheld
the agency's decision to offer complainant a Markup Clerk position,
despite complainant's contention that the agency's offer was arbitrary,
and that complainant should have been permitted to return to his prior
limited duty assignment.
On June 21, 1995, complainant requested a reasonable accommodation of
two consecutive days off, as he previously had, due to his Interstitial
Cystitis. Despite providing additional medical documentation in response
to PM's written request, complainant was never granted the requested
accommodation.<4> Even after complainant repeatedly requested the
above accommodation, he was informed that he had to provide medical
documentation, notwithstanding the fact that he had already provided
such documentation. See supra footnote 4.
The record also reveals that over the course of twenty months, complainant
drafted five letters to the EEO Manager seeking counseling and attempting
to initiate the formal complaint process. Complainant's appeal indicates
that the agency EEO office in the Gateway District received these letters,
as copies of certified receipts were included with most of the documents.
Notwithstanding complainant's numerous attempts to have his EEO matters
processed, none of those letters received a response from the Gateway
District EEO office. Ultimately, on January 31, 1996, complainant was
interviewed by an EEO Counselor. Notwithstanding complainant's voluminous
correspondence with the EEO Manager, the Counselor's Report only
referenced issues (1) and (3) and alluded to issue (2).<5> Complainant
submitted a formal EEO complaint on February 14, 1996. Complainant also
submitted a letter with the formal complaint. In this letter, complainant
set forth, in varying detail, the issues identified herein as (1) through
(10). The agency's investigative file does not contain the letter or
its numerous attachments, but complainant's appeal documents indicate
that the agency did receive the above-referenced documents.
The agency did not accept complainant's complaint until June 7, 1996,
and it only accepted issues (1) and (3), based on physical disability
(Interstitial Cystitis). The agency neither accepted nor dismissed
complainant's other claims, but informed complainant that if he objected
to the defined issues, he should provide [the agency] with sufficient
reasons to substantiate [complainant's] objections, in writing, within
seven (7) calendar days of receipt of this letter. On June 11, 1996,
complainant submitted a letter to the Gateway District EEO office,
wherein he disagreed with the limited scope of the agency's proposed
investigation. Complainant's lengthy letter was in large part a
restatement of his formal complaint, and he requested that the agency
address issues (2) and (4) through (10). Complainant also requested
compensation for pain and suffering. The agency did not respond to
complainant's letter.
On January 1, 1997, complainant received a copy of the investigative
file and requested a final agency decision (FAD). Additionally, and
having found the investigative file to be incomplete and inaccurate,
complainant attached his June 11, 1996, letter to his request for a FAD,
and renewed his request for the agency to investigate all of his claims
of discrimination. The agency did not include this correspondence in
the investigative file, though complainant provided evidence on appeal,
again in the form of a signed certified mail receipt dated January 7,
1997, that the Gateway District EEO office received this correspondence.
There is no record of any response by the agency.
Ten months later, on November 3, 1997, the agency issued its FAD.
In its FAD, the agency asserted that it had no record of any response
from complainant requesting a final agency decision, and proceeded
to address the issues herein identified as issues (1), (3) and (4).
Concerning issue (1), the agency concluded that by complying with
the Arbitrator's decision, it had fulfilled its obligation under the
Rehabilitation Act. Concerning issue (3), the agency concluded that
the removal issue was moot because the effects of complainant's removal
were completely eradicated by the Arbitrator's award. Concerning issue
(4), the agency concluded that the request for medical documentation
was consistent with provisions in its Collective Bargaining Agreement,
and because complainant was granted the requested sick leave without
having to provide the requested documentation, he experienced no harm.
Concerning complainant's retaliation claim, the FAD concluded, based on
PM's statement that he was unaware of complainant's EEO activity in 1987,
and the Plant Manager's testimony that he only had a vague recollection of
complainant's prior EEO activity, that complainant's prior EEO activity
had nothing to do with their actions, and that complainant therefore
did not establish the requisite nexus between the protected activity
and the alleged acts of retaliation.
On appeal, complainant submitted a detailed record and account of
his ongoing effort to address his claims through the EEO office.
As relief, complainant requested, among other things, any other relief
deemed appropriate. The agency stands on the record and argues that
complainant's inclusion of other issues that were not included in the
formal complaint should not be addressed on appeal. The agency requests
that the Commission affirm its FAD.
ANALYSIS AND FINDINGS
After a careful review of the record, the Commission will address each
of the issues, as set forth below:
Issues (1) through (3)
The Commission first notes that complainant requested compensatory
damages. The Commission has held that an agency must address the issue of
compensatory damages before it can dismiss a complaint for mootness. See
Rouston v. National Aeronautics and Space Administration, EEOC Request
No. 05970388 (March 18, 1999). Thus, the agency's dismissal of issue
(3) as moot was improper because it did not address compensatory damages
in its FAD.
We next note that the agency, in its final decision and on appeal,
did not dispute that complainant is an individual with a disability
as defined by the Rehabilitation Act.<6> Therefore, this issue is not
before the Commission on appeal, and need not be further discussed or
addressed. The dispositive issue in this case is whether the agency met
its responsibility to provide complainant with reasonable accommodations
to his disability in response to complainant's requests for permanent
light duty.
While the Rehabilitation Act does not require an employer to create a
light duty position as an accommodation, it does require an employer,
absent undue hardship, to accommodate a qualified individual with a
disability by restructuring a position through redistribution of marginal
functions which he cannot perform because of disability, or by reassigning
him to an equivalent existing vacancy for which he is qualified. Williams
v. United States Postal Service, EEOC Appeal No. 01973755 (September 11,
2000); Flowers v. United States Postal Service, EEOC Appeal No. 01984878
(September 9, 1999); Lowery v. United States Postal Service, EEOC Appeal
No. 01961852 (October 31, 1997); Ignacio v. United States Postal Service,
EEOC Petition No. 03840005 (September 4, 1984), aff'd, 30 M.S.P.R. 471
(Spec. Pan. February 7, 1986). The Commission has also stated that
the employer and the individual with a disability should engage in an
informal process to clarify what the individual needs and identify the
appropriate reasonable accommodation. See EEOC Enforcement Guidance on
Reasonable Accommodation and Undue Hardship under the Americans with
Disabilities Act, No. 915.002, (March 1, 1999), at p. 11. See also
Crider v. Department of Veterans Affairs, EEOC Request No. 05960632
(October 16, 1998).
The agency maintains that it fulfilled its duty under the Rehabilitation
Act when it reassigned complainant to a light duty position, pursuant to
the order of an Arbitrator, as stated herein. We disagree. The agency
has failed to provide any evidence that from the time of his initial
request, it engaged in the requisite, interactive process, and as
a result of such process, concluded that complainant could not be
reasonably accommodated in any position within the agency. It appears
clear that prior to the Arbitrator's order, the agency refused to
give meaningful consideration to complainant's request. Yet, when
the Arbitrator ordered the agency to seek a light duty position for
complainant within his medical restrictions, the agency was able to
locate and offer complainant a light duty position within four days of
the Arbitrator's decision. Moreover, even during that search, there is
no indication that the agency attempted to engage in any interactive
process with complainant or that it engaged in a good faith search
to identify a position in complainant's grade, and within his medical
restrictions. See Williams v. United States Postal Service, EEOC Appeal
No. 01973755 (September 11, 2000). Thus, while the agency may have
complied with the Arbitrator's order by reassigning complainant to a
vacant position ten months after he was denied a light duty position,
this action cannot insulate the agency from its failure to provide
complainant a reasonable accommodation at the onset. The Commission
therefore concludes that the agency violated the Rehabilitation Act by
failing to consider complainant's initial request for reassignment to
a light duty position, and ultimately terminating him.
The record also reveals that while complainant's position prior to his
termination entitled him to consecutive days off, he was placed in a
light duty position with non-consecutive days off. Shortly thereafter,
complainant requested consecutive days off as an accommodation in his new
light duty position. Upon receiving this request, PM requested medical
documentation to substantiate complainant's request. Complainant's
physician provided the documentation requested by PM. See supra
footnote 4. PM, however, refused to grant the requested accommodation.
The correspondence from PM provides no explanation as to why he did not
accept complainant's physician's note. There is no record that PM or
any other agency management official contested the sufficiency of the
information justifying the need for two consecutive days off. To the
contrary, it appears that PM did not believe complainant was impaired
to any substantial degree, and he felt that complainant merely wanted
his way and would reference his disability to avoid performing duties.
Based on the record, the Commission concludes that PM failed to provide
a reasonable accommodation when he refused to give complainant two
consecutive days off. On remand, the agency shall confer with complainant
in order to determine his various limitations, reexamine the available
vacancies within complainant's grade, and, absent any undue hardship,
place complainant in a position or arrange his existing schedule, such
that he has two consecutive days off. Such a process shall be conducted
in an expedited fashion, given the medical necessity for consecutive
days off evident in the record.
Concerning complainant's remedies, the Commission first notes that
complainant is entitled to back pay and interest at a PS-05 grade from
the time of his removal through to the time the agency identifies a
position in its facility, at a PS-05 level, which has consecutive days
off or otherwise is consistent with his present needs for a reasonable
accommodation, consistent with this decision and its accompanying ORDER.
The Commission acknowledges that complainant has been reinstated and
received back pay and interest pursuant to the Arbitrator's finding.
While the record indicates that complainant was placed in a PS-04
position, it had a saved grade of PS-05 for only two years. Thus, the
agency shall be responsible for providing complainant any additional
back-pay and interest due him at a PS-05 grade level, less earnings
received, until such time as the agency has offered complainant a PS-05
grade level position consistent with his disability and present needs
for an accommodation, or until such time as the agency determines that
there are no available positions at the PS-05 grade level which can
accommodate his present needs for an accommodation.
Additionally, the issue of compensatory damages was not addressed by
the agency. In this respect, we note that the Civil Rights Act of 1991,
Section 1977A(3) (42 U.S.C. § 1981(a)(3)), provides that compensatory
damages are not available for findings of discrimination under the
Rehabilitation Act for failure to accommodate where an agency has made
a good faith effort to reasonably accommodate a complainant. See
Morris v. Department of Defense, EEOC Appeal No. 01962984 (October 1,
1998) n.3. Here, however, the Commission finds that the agency did
not demonstrate that it engaged in a good faith effort to reasonably
accommodate complainant, and thus, compensatory damages are available to
the extent such damages are established on remand. See West v. Gibson,
527 U.S. 212 (1999).
In addition, there is no indication in the record that complainant
was credited with the appropriate accrued sick leave and annual leave,
or applicable seniority. Where discrimination is found, the injured
party is to be placed, as near as may be, in the situation he would have
occupied if the wrong had not been committed. Albemarle Paper Company
v. Moody, 422 U.S. 405, 418-19 (1975). On remand, the agency shall,
to the extent applicable, provide complainant with any applicable sick
and annual leave, seniority, or other benefits he would have earned
at a PS-05 grade level, between the date of complainant's termination
and the date of his reinstatement. Finally, the Commission, having
found discrimination based on physical disability, need not address
complainant's claim of retaliation, as the remedies available would not
be augmented, even with a finding of retaliation.
Issue (4)
The Commission agrees with the agency that complainant has not established
a prima facie case of disparate treatment based on disability or
retaliation because he was not aggrieved, as he experienced no present
harm to a term or condition of employment when the agency requested
medical documentation to support his request for sick leave. See 29
C.F.R. § 1614.107(a); Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994). In this respect, we note that the
relevant Collective Bargaining Agreement does not preclude a supervisor
from requesting medical documentation to substantiate a request for sick
leave, and complainant did not allege that he was treated differently from
non-disabled employees when he was asked to provide medical documentation
to support his request.<7> As complainant did not experience any adverse
treatment to a term or condition of employment, he fails to establish
a prima facie case of discrimination. We therefore AFFIRM as CLARIFIED
the agency's finding of no discrimination respecting this issue.
Issues (5) through (10)
Concerning the issues identified herein as issues (5) through (10), we
find the FAD did not address these claims because the agency failed to
properly accept, define and ultimately process complainant's complaint
dated February 14, 1996. As reflected in the background portion of this
decision, there are numerous claims in the complaint which the agency
never acknowledged or accepted in its letter of acceptance. The Gateway
District EEO office failed to include voluminous correspondence from
complainant in the complaint file which set forth these additional
claims, and apparently did not respond to complainant's correspondence
concerning these additional claims notwithstanding his continuous attempts
to have them addressed. The agency does not deny having received any
of the correspondence provided by complainant on appeal, and in fact,
complainant has established that the Gateway District EEO office received
his correspondence based on signed certified mail receipts included in
his appeal submission.
As the July 12, 1999 Preamble to the 1614 Regulations effective November
9, 1999 identified fragmentation of EEO complaints as a problem in the
Federal Sector, and based on the information available in the record in
conjunction with the agency's failure to process the above-referenced
issues, it would be inappropriate to remand any of the above-referenced
issues to the agency for further processing to the extent that the
Commission has adequate information in the complaint file upon which
to make a determination. Accordingly, the Commission will address the
issues numbered (5) through (10) below.
Issue (5) Complainant was discriminated against due to his Disabled
Veteran status
The Commission concludes that to the extent complainant alleges he
was denied rights due to his status as a disabled veteran, complainant
has failed to state a claim. The Commission has repeatedly held that
veteran preference or status is not a protected basis for filing an EEO
complaint and therefore such complaints are not within the purview of
EEOC Regulations. See Devereux v. United States Postal Service, EEOC
Request No. 05960869 n.1. (Apr. 24, 1997). Further, the Commission
does not have any part in the enforcement of or jurisdiction over
the Veterans Readjustment Act or Veterans Affirmative Action Program.
To the extent that complainant believes that the agency is treating
veterans or disabled veterans in a discriminatory manner, complainant
is advised to contact the Office of Federal Contract Compliance (OFCCP),
the agency charged with such enforcement. Accordingly, and to the extent
the complainant has raised this as an issue in his appeal, the Commission
need not respond further for the reasons set forth above.
Issue (6) Agency management officials provided false testimony during
complainant's arbitration hearing.
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. See Wills
v. Department of Defense , EEOC Request No. 05970596 (July 30,
1998); Kleinman v. United States Postal Service, EEOC Request No.
05940585 (September 22, 1994); Lingad v. United States Postal Service,
EEOC Request No. 05930106 (June 25, 1993). The proper forum for
complainant to have raised his challenges to actions which occurred
during the arbitration proceeding was at that proceeding itself. It is
inappropriate to now attempt to use the EEO process to collaterally attack
actions which occurred during the arbitration process. Accordingly, and
to the extent the complainant has raised this as an issue in his appeal,
the Commission need not respond further for the reasons set forth above.
Issue (7) Complainant was charged three days as absent without leave
(AWOL) when he was injured on January 25, 1994
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, 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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The record reveals that the earliest date of initial counselor contact
was May 25, 1994, which is more than forty-five (45) days from the date
of the above-referenced incident. Complainant has presented no evidence
that he was not notified of the time limits and was not otherwise aware
of them, or that any other equitable reason would warrant an extension
of the time limit. Accordingly, and to the extent the complainant has
raised this as an issue in his appeal, the Commission need not respond
further for the reasons set forth above.
Issue (8) The agency breached its settlement agreement with complainant
in agency case number 4-P-0027-9
In his correspondence dated February 14, 1996, and sent to the
agency along with his formal complaint also dated February 14, 1996,
complainant claimed that the agency breached a settlement agreement
with him because ...the Postal Service had agreed to accommodate
[complainant's] medical restrictions for his interstitial cystitis.
When the agency received this correspondence, it should have processed
the above pursuant to the Commission's Regulations concerning an alleged
breach of settlement agreement, found at 29 C.F.R. § 1614.504. The
Commission has already concluded, however, that the agency violated the
Rehabilitation Act when it failed to provide a reasonable accommodation
for complainant's disability. Thus, even assuming that the agency
breached its settlement agreement by failing to provide complainant with
a reasonable accommodation for his disability, he would be entitled to
no more relief then he is already obtaining as a result of this decision
and its accompanying ORDER. Moreover, an agency's duty to accommodate a
qualified individual with a disability is mandated by the Rehabilitation
Act and thus is independent of any duty it owed complainant pursuant
to a settlement agreement. Accordingly, the Commission concludes that
remanding issue (8) for further processing consistent with 29 C.F.R. §
1614.504 is not warranted, and to the extent the complainant has raised
this as an issue in his appeal, the Commission need not respond further
for the reasons set forth above.
Issue (9) Complainant was harassed by agency management officials
In his correspondence dated February 14, 1996, and sent to the agency
along with his formal complaint also dated February 14, 1996, complainant
alleged that his supervisor and a co-worker would not fill in for him
at the bulk mail acceptance area and would repeatedly page him over the
intercom to report to his duty station during the numerous bathroom
visits required as a result of his disability. Complainant further
alleged that he was assigned simultaneous incoming phone duty and
processing of NOV's which did not allow him to take bathroom breaks,
notwithstanding his need for regular and occasionally urgent bladder
movements more than once every hour. If proven, such acts of harassment
based on complainant's disability are sufficiently severe or pervasive
to state a claim of harassment under Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
The Commission again notes that because the agency failed to properly
process complainant's formal complaint, the agency did not investigate his
hostile work environment claim. Although the Commission is reluctant
to remand any claim which would result in further fragmentation of
complainant's EEO claims, we are left with no option other than to remand
issue (9) for an expedited supplemental investigation consistent with
this decision and its accompanying ORDER. The Commission further notes
that a potential finding that complainant was a subjected to a hostile
environment on the basis of his disability could have a substantial
impact on the amount of compensatory damages due him. Accordingly, any
determination into the amount of compensatory damages due complainant as
a result of the agency's violations of the Rehabilitation Act should be
held in abeyance pending the completion of an expedited investigation into
complainant's harassment claim. Accordingly, complainant's complaint
and subsequent appeal concerning issue (9) is REMANDED to the agency
for an expedited investigation consistent with this decision and its
accompanying ORDER.
Issue (10) Complainant was denied due process of law due to the
dysfunctional EEO complaints processing system in the Gateway
District.
The Commission finds, after an independent review of the record, that
the agency failed, over the course of a twenty month period, to provide
EEO counseling to complainant, despite his repeated attempts to secure
EEO counseling and file a formal EEO complaint. Additionally, and as
stated previously, the agency did not conduct a sufficient inquiry,
consistent with 29 C.F.R. § 1614.105 and our EEOC Management Directive
for 29 C.F.R. Part 1614 as revised, EEO-MD-110, at 2-8 and 2-9 (November
9, 1999) prior to issuing its letter of acceptance, as evidenced by the
numerous additional issues (and basis) neither accepted nor dismissed by
the agency in its letter of acceptance. Moreover, when confronted with
these errors by a letter from complainant per the agency's instructions,
the agency still took no action, and did not even acknowledge the dispute.
Furthermore, the agency investigation did not include a number of crucial
documents concerning, among other things, evidence of complainant's
physical impairments and various memoranda to the EEO office;<8> and
the final agency decision was issued, not within sixty days as required
by 29 C.F.R. § 1614.110, but after ten months. The agency's attempt
to deny receipt of the request for a FAD is undermined by a certified
receipt provided by complainant in his appeal documents. Finally, the
investigative file only contains a formal complaint dated February 14,
1996, and does not contain complainant's original formal complaint,
which has an illegible date in 1994.
While there is insufficient evidence that the Gateway District EEO Office
unlawfully interfered with complainant's EEO claim, see Pruette v. United
States Postal Service, EEOC Appeal No. 01951567 (March 10, 1998), the
Commission notes that based on the record of the agency's non-processing
or mis-processing of complainant's EEO claim, it is unclear whether
the above represents a systemic problem within the agency's Gateway
District EEO office. The Commission takes judicial notice that a number
of other complaints which have been processed through our hearings unit
in the St. Louis District Office corroborate complainant's allegation of
a dysfunctional EEO process in the Gateway District.<9> We also take
judicial notice of Congressional inquiries concerning labor management
relations and other problems related to the treatment of individuals
with disabilities at complainant's facility.<10>
We remind the agency of its obligation to process EEO complaints
of discrimination in a manner consistent with the EEOC Regulations.
In this respect, we note that 29 C.F.R. § 1614. 102(a)(2) provides that
agency's shall [p]rovide for the prompt, fair, and impartial processing
of complaints in accordance with this part and the instructions contained
in the Commission's Management Directives. Moreover, the Commission
has held that:
The agency has a continuing duty to promote the full realization of
equal employment opportunity in its policies and practices. This duty
extends to every aspect of agency personnel policy and practice in the
employment, advancement, and treatment of employees. Agencies shall,
among other things, insure that managers and supervisors perform in
such a manner as to effectuate continuing affirmative application and
vigorous enforcement of the policy of equal opportunity.
See George v. United States Postal Service, EEOC Request No. 05980451
(October 8, 1998) quoting Crespo v. United States Postal Service,
EEOC Request No. 05920842 (September 17, 1993). Here, the record
demonstrates the EEO office in the Gateway District did not effectuate
vigorous enforcement of the policy of equal opportunity, and, contrary
to 29 C.F.R. § 1614.102(a)(2), failed to provide for prompt, fair and
impartial processing of complainant's complaint.<11>
In analogous cases involving conflicts of interest, the Commission
has ordered another agency EEO office to assume processing of an EEO
complaint. See Davis v. Environmental Protection Agency, EEOC Request
No. 05920097 (March 12, 1992). Although there is no evidence of any
conflict here, the record clearly establishes that the EEO office in the
Gateway District failed to promptly, fairly, and impartially process
complainant's EEO complaint. Such failure to comply with 29 C.F.R. §
1614.102(a)(2) necessitates a similar remedy. Accordingly, on remand, the
Commission instructs the agency to assign all subsequent EEO processing
of complainant's complaint set forth herein to the agency's headquarters
EEO office in Washington, D.C. Further, the agency headquarters EEO
office shall conduct an on-site investigation concerning the actions or
inactions of the EEO office in the Gateway District which have given
rise to the course of events set forth herein, and issue a report to
the agency's Director of EEO and its Postmaster General, as well as
to the Commission's Compliance Officer, explaining what preventative
and curative actions it determines are required, and that it has taken,
in order to address the deficiencies in the Gateway District EEO office
evident in the record.
The agency shall assign an EEO investigator from its headquarters facility
within fifteen (15) days from its receipt of this decision. Thereafter,
the headquarters EEO investigator shall conduct concurrent, expedited
investigations into complainant's claim of hostile environment disability
discrimination (issue (9) herein), and complainant's compensatory
damages claim. The concurrent investigations shall be completed within
forty-five (45) days of the date the headquarters EEO investigator is
assigned to the case. Thereafter, the agency's headquarters EEO office
shall provide complainant a copy of the completed investigation and
provide a notice to complainant of his right to request a hearing or
a final agency decision on his hostile environment claim and his claim
for compensatory damages due him pursuant to 29 C.F.R. § 1614.108(f),
this decision and accompanying ORDER. If the agency fails to complete
its investigation within sixty (60) days of its receipt of this decision,
then complainant may request a hearing on his hostile environment claim
and compensatory damages by submitting a request for hearing with the
appropriate Commission office, with a copy to the agency, pursuant to 29
C.F.R. § 1614.108(g). Ultimately, either the agency or an Administrative
Judge from the Commission shall first rule on the merits of complainant's
hostile environment claim, and then make a determination as to what
compensatory damages, if any, are due complainant.<12>
CONCLUSION
Therefore, after a careful review of the record in its entirety, including
complainant's arguments on appeal, the agency's response, and arguments
and evidence not discussed in this decision, the Commission AFFIRMS as
CLARIFIED the FAD in part, to the extent that it found no discrimination
in issue (4), and to the extent it should have accepted and dismissed the
issues identified herein as (5) through (8); REVERSES and REMANDS the
FAD in part, finding that the agency unlawfully discriminated against
complainant concerning the actions alleged in issues (1) through (3),
and REMANDS in part, issues (9) and (10) identified herein to the agency
to take remedial actions in accordance with this decision and the ORDER
below.
ORDER (D0900)
The agency is ORDERED to take the following remedial action:
1. The agency shall reassign the processing of complainant's complaint,
including all compliance with this decision and accompanying ORDER,
the expedited investigation into complainant's hostile environment
claim, the supplemental investigation into complainant's entitlement to
compensatory damages, and FAD (if complainant does not request a hearing
before an Administrative Judge), to the agency's headquarters EEO Office
in Washington, D.C.
The agency's headquarters EEO office shall also conduct an on-site
investigation of the Gateway District EEO office concerning the prior
processing of complainant's complaint, and within ninety (90) days
of the date this decision becomes final, issue its findings to the
Director of EEO, the Postmaster General and the Compliance Officer,
as referenced below. The report should summarize its findings, and
set forth whatever preventative and curative actions are required and
it has taken in addition to that which the Commission has set forth in
paragraph nine of this ORDER.
Concerning complainant's hostile environment claim (issue (9)),
the agency headquarters EEO office shall assign an investigator from
headquarters office in Washington, D.C. within fifteen (15) days of
receipt of this decision. Thereafter, the headquarters EEO investigator
shall conduct concurrent, expedited investigations into complainant's
hostile environment claim and his claim for compensatory damages.
The investigator shall afford complainant an opportunity to establish
a causal relationship between the incident of discrimination and any
pecuniary or non-pecuniary losses. See West v. Gibson, 527 U.S. 212
(1999); Cobey Turner v. Department of the Interior, EEOC Appeal
Nos. 01956390 and 01960158 (April 27, 1998). The complainant shall
cooperate in the agency's efforts to obtain evidence concerning the
amount of compensatory damages, and shall provide all relevant information
requested by the agency. The expedited investigation shall be completed
within forty-five (45) days of the date the headquarters EEO investigator
is assigned to the case. The agency's headquarters EEO office shall
then provide complainant a copy of the completed investigation and
provide a notice to complainant of his right to request a hearing
before an EEOC Administrative Judge, or a final agency decision on his
hostile environment claim and his claim for compensatory damages due him
pursuant to 29 C.F.R. § 1614.108(f). If the agency fails to complete its
investigation within sixty (60) days of its receipt of this decision, then
complainant may request a hearing on his hostile environment claim and
entitlement to compensatory damages by submitting a request for hearing
to: Tanya Schwendinger, Supervisory Administrative Judge, St. Louis,
Missouri District Office, Robert A. Young Building, 1222 Spruce Street,
Room 8100, St. Louis, Missouri 63103.
If complainant requests a FAD, then within forty-five (45) days of receipt
of complainant's request, the agency shall issue a final decision on
the hostile environment claim and the issue of compensatory damages. 29
C.F.R. § 1614.110. A copy of the final decision must be submitted to
the Compliance Officer, as referenced below.
If complainant requests a hearing, then the agency shall cooperate with
the Administrative Judge assigned to rule on the merits of complainant's
hostile environment claim and his entitlement, if any, to compensatory
damages. The Administrative Judge assigned to hear these matters shall
be appraised by complainant and the agency of this decision and ORDER,
and shall make every effort to expedite the processing of complainant's
pending matters.
Within fifteen (15) days of the date the agency receives this decision,
the agency's headquarters EEO office shall ensure that the Columbia,
Missouri facility engages in an interactive process with complainant to
determine his current medical limitations. Concurrently, the agency
shall review job vacancies within the same grade (PS-05) to determine
whether there are any vacancies for which complainant may be qualified
within his medical restrictions. In providing complainant a position,
the agency shall provide all appropriate accommodations consistent with
complainant's current medical restrictions.
The agency shall ensure that complainant has received back pay at a
PS-05 wage level from the date of his termination through to the date the
agency places complainant in a position in its facility, at a PS-05 level,
which has consecutive days off or otherwise is consistent with his present
needs for a reasonable accommodation. The agency shall deduct any wages
received pursuant to the Arbitrator's decision and order, referenced
herein, and any other wages earned between the above-referenced dates.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due appellant, pursuant to
29 C.F.R. § 1614.501, no later than sixty (60) calendar days after the
date this decision becomes final. The complainant shall cooperate in
the agency's efforts to compute the amount of back pay and benefits due,
and shall provide all relevant information requested by the agency.
If there is a dispute regarding the exact amount of back pay and/or
benefits, the agency shall issue a check to the complainant for the
undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. The complainant
may petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
The agency shall provide complainant with any leave, seniority, or other
benefits that complainant would have earned at a PS-05 grade, which
were not already provided in conjunction with the Arbitrator's award,
which accrued between the above-referenced dates.
The agency shall provide a minimum of twenty-four (24) hours of EEO
training for the Columbia, Missouri Postmaster and its Plant Manager,
who were found to have discriminated against the complainant as set forth
herein. The agency shall address these employees' responsibilities
with respect to eliminating discrimination in the workplace and
the requirements of reasonable accommodation as set forth in the
Rehabilitation Act. The agency shall provide written verification to
the Commission's Compliance Officer that these individuals received
relevant training after receipt of this decision and its ORDER.
The agency shall also provide a minimum of twenty-four (24) hours of EEO
processing training to all agency EEO management and staff in the Gateway
district EEO office. If any employees of the Gateway District during the
relevant time have transferred to another agency EEO or Personnel office,
then the agency shall ensure that these individuals are located and are
also provided training consistent with this decision and its accompanying
ORDER. The agency shall address these employees' responsibilities
with respect to EEO complaints processing, eliminating discrimination
in the workplace and the requirements of reasonable accommodation as
set forth in the Rehabilitation Act. The agency shall provide written
verification to the Commission's Compliance Officer that all current and
relevant past Gateway District EEO managers and staff received relevant
training after receipt of this decision and its accompanying ORDER.
The agency shall consider whether disciplinary action is appropriate for
any of the relevant agency management or EEO officials, as set forth
herein.
12. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of any benefits due complainant, including evidence
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Columbia, Missouri postal facility
copies of the attached notice. Copies of the notice, after being
signed by the agency's duly authorized representative, shall be posted
by the agency within thirty (30) calendar days of the date this decision
becomes final, and shall remain posted for sixty (60) consecutive days,
in conspicuous places, including all places where notices to employees are
customarily posted. The agency shall take reasonable steps to ensure that
said notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(Supp. V 1993). 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 (M0900)
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
__________________________________
Frances M. Hart
Executive Officer
Executive Secretariat
November 27, 2000
_______________
DATE
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 OPPORTUNITY ASSISTANT 1 On 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 29 C.F.R. Part 1614 in
deciding the present appeal. The regulations, as amended, may also be
found at the Commission's website at www.eeoc.gov.
2 Interstitial Cystitis is defined as [a] chronic inflammatory condition
of unknown etiology involving the mucosa and muscularis of the bladder,
resulting in reduced bladder capacity, pain relieved by voiding, and
severe bladder irritative symptoms. Stedman's Medical Dictionary, at 434
(26th Ed., 1995).
3 The Commission notes, with respect to the impact of the disease on
complainant, an excerpt from one of his physician's notes (found at in
the Investigative File at Exhibit 7, page 2), which provides that:
[Complainant] currently voids frequently (greater than on[c]e [every]
hour [sic] and has nocturia 3-4 times per night. His main problem is
abdominal pain which is aggravated by any type of physical pressure.
This curtails his physical activities and keeps him from being able to
lift appropriately.
[Complainant] is currently on a number of medications including
nortriptyline, hydroxyzine, and beelafon and clonazapan for his
interstitial cystitis. He also undergoes regular DMSO installations [pain
medication] every couple of weeks and cystoscopy with hydrodistention
under anesthesia every couple of months.
4 A physician's note dated July 24, 1995, stated that because
of complainant's Interstitial Cystitis, and [t]o help [complainant]
continue his work activities I would recommend that you arrange his
schedule with two consecutive days off a week. This will give him some
recovery time from a five day work period. Most of these patients find
that if they can go to bed and rest for one or two days their symptoms
are alleviated enough that they can resume normal work activities.
I would encourage you to see if his schedule can be altered so he can
have a 48 hour rest interval.
5 The Counselor's Report, dated April 30, 1996, indicates that complainant
sought EEO counseling on May 25, 1994 and August 31, 1994.
6The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
7 The relevant portion of the Collective Bargaining Agreement provides
that For periods of absence of three (3) days or less, a supervisor
may accept an employee's certification as reason for an absence. See
Investigative file, exhibit 16, page 4.
8 The Commission reminds the agency that our Regulations and the EEOC
Management Directive for 29 C.F.R. Part 1614 require agencies to develop
a complete and impartial factual record. See 29 C.F.R. § 1614.108(b)
and EEO-MD-110, at 5-1 (November 9, 1999). Additionally, the recently
published EEOC Enforcement Guidance on Reasonable Accommodation and
Undue Hardship under the Americans with Disabilities Act, No. 915.002,
(March 1, 1999), provides instructions for investigators when assessing
whether or not an agency violated the Rehabilitation Act by denying a
reasonable accommodation.
9See Agnew v. United States Postal Service, Agency No. 1I-632-1067-97,
EEOC No. 280-97-4403X (Counseling took almost two years, Investigation
took approximately fourteen months); Kerley v. United States Postal
Service, Agency No. 4I-630-1017-95, EEOC No. 280-AO-4054X(Counseling
took two years; Investigation took approximately eighteen months);
Mays v. United States Postal Service, Agency No. 1I-633-1002-96,
EEOC No. 280-97-4407X(Counseling took eight months, Investigation
took one year); Campbell v. United States Postal Service, Agency
No. 4Q-000-1585-92, EEOC No. 280-97-4193X(Counseling took over fifteen
months, Investigation took over four-and-one-half years to complete).
10The Commission further notes that we have found disability
discrimination at the Columbia, Missouri postal facility on another
occasion. See Davis v. United States Postal Service, EEOC appeal
No. 01956586 (December 8, 1997)(finding of discrimination due to agency
failure to provide a PS-6 Distribution Clerk a reasonable accommodation).
11While the Commission's Regulations provide that an agency not subject
to 5 U.S.C. § 7121(d) which has a negotiated grievance procedure may
hold an EEO complaint in abeyance during the processing of a grievance
covering the same matter as the complaint, see 29 C.F.R. § 1614.301(d),
there is no evidence in the record that the agency's inaction was in
any way connected to its processing of complainant's grievance. To the
contrary, the agency's inaction commenced prior to the time complainant
filed his grievance, and continued beyond the time his grievance was
ultimately decided in his favor.
12 The Commission notes that as the record indicates complainant was
not represented by counsel, it is accordingly not ordering a remedy of
attorney's fees in this matter.
| [
"Rouston v. National Aeronautics and Space Administration, EEOC Request No. 05970388 (March 18, 1999)",
"Williams v. United States Postal Service, EEOC Appeal No. 01973755 (September 11, 2000)",
"Flowers v. United States Postal Service, EEOC Appeal No. 01984878 (September 9, 1999)",
"Lowery v. United States P... | [
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258 | https://www.eeoc.gov/sites/default/files/decisions/2020_12_07/2020001273.pdf | 2020001273.pdf | PDF | application/pdf | 27,926 | Jacinto Q .,1 Complainant, v. Janet Dhillon,2 Chair, Equal Employment Opportunity Commission, Agency. | November 27, 2019 | Appeal Number: 0120162639
Background:
At the time of events giving rise to this complaint, Complainant was an applicant for employment at the Agency. On April 10, 2014, the Agency posted a vacancy for an Alternative Dispute Resolution (ADR) Mediator in multiple locations, under vacancy number D14- OFP-1095443-085-
TMD. Complainant contacted a Human Resources Specialist (HRS) and provided his documents to apply for the positions in Baltimore, New York City, and Houston. HRS referred Complainant’s application to the respective selecting officials, noting that Complainant wished to be considered
under the following non-competitive authorities : Schedule A,
3 Veterans Employment
Opportunities Act of 1998 (VEOA), Reinstatement Eligibles, and 30% or more Disabled Veterans. Complainant was not selected for the position in New York City. The Agency moved the Baltimore vacancy to Philadelphia because two ADR Mediators in Philadelphia retired, which created a
greater need to hire mediators in that office . The Agency also moved the Houston vacancy to
Miami bec ause it reassigned an internal ADR Mediator from Miami to Houston. On August 5,
2014, the Agency posted a vacancy for ADR Mediators in Philadelphia and Miami, under vacancy
number D14 -OFP-1183231-132- TMD. Complainant requested that he be considered for the se two
vacancies, and he was not selected .
On October 10, 2014, Complainant filed an equal employment opportunity ( EEO ) complaint
alleging that the Agency discriminated against him on the basis of disability and in reprisal for prior protected EEO activity when :
(1) on August 18, 2014, Complainant was not selected for the GS -0301- 12 ADR Mediator
position advertised under Job Announcement No. D14- OFP-1095443-085- TMD, which
advertised vacant positions located in Baltimore, Maryland; New York, New York; Houston, Texas; and an “unspecified” location, which later was identified as Seattle, Washington;
(2) Complainant was not selected for the GS -0301- 12 ADR Mediator position advertised
under Job Announcement No. D14- OFP-1183231-132- TMD, which advertised vacant
positions located in Miami, Florida, and Philadelphia, Pennsylvania; and
(3) unknown EEO management and Human Resource officials, including HRS,
(a) conspired to manipulate the recruitment and staffing for ADR Mediator positions;
(b) conspired to cancel and move the advertised vacancy in the Houston, Texas, office to the Miami, Florida, office;
3 The “Schedule A” hiring authority is a non- competitive appointment authority used for hiring
applicants with disabilities. See generally 5 C.F.R. § 213.3102(u).
(c) conspired to cancel and move the advertised vacancy in the Baltimore, Maryland, office
to the Philadelphia, Pennsylvania, office; and
(d) failed to follow established procedures for the receipt and administration of applications received from applicants with disabilities.
Complainant also alleged that management officials authorized and administered EEO counseling
designed to intimidate and deter him from filing a formal EEO complaint. Specifically, Complainant alleged that:
(1) the EEO Counselor failed to identify herself or her role when she initial ly contacted
Complainant, causing an unnecessary delay in the start of EEO counseling;
(2) the EEO Counselor initially refused to respond via email to Complainant’s specific inquiries regarding his initial contact;
(3) the EEO Counselor restricted the amount of time available for EEO counseling by not promptly responding to Complainant’s e -mails. It was only when Complainant involved
the EEO Counselor’s supervisor, the Deputy Director of the Office of Equal Opportunity (OEO), that the EEO Counselor understood that Complainant could submit communications in writing;
(4) the EEO Counselor recorded Complainant’s claims and bases incorrectly;
(5) the EEO Counselor conducted an insufficient limited inquiry, closed out EEO counseling prematurely, and did not ask whether Complainant would agree to an extension of the EEO counseling to conduct a sufficient limited inquiry;
(6) the EEO Counselor failed to identify the name and title of any involved management official , or any documents reviewed during EEO counseling;
(7) the EEO Counselor failed to provide Complainant with the specific reasons why he was not selected by the responsible management officials , or the reasons why the positions
were cancelled and moved to another location;
(8) the EEO Counselor failed to identify any resolving official , or any attempts at resolution
during the counseling; and
(9) the Agency failed to fram e his allegations accurately in the Notice of Acceptance.
The Agency informed Complainant that it would process the claims concerning the processing of
his complaint pursuant to Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD -110) (Aug ust 3, 2015).
Complainant requested a final decision from t he Agency, whic h found that Complainant did not
establish that it discriminated against him as alleged. The Agency found that Complainant did not
establish prima facie cases of discrimination based on disability or reprisal. The Agency found that
management officials nonetheless had articulated legitimate, nondiscriminatory reasons for its
actions , and that Complainant did not show that the articulated reasons were a pretext for
discrimination.
The Agency also found that there was no merit to Complainant’s claim of improper complaint -
processing. For example, the Agency stated that the EEO Counselor “took all reasonable measures
to ensure that his complaint was timely filed,” and that her failure to identify hers elf as an EEO
Counselor in her initial email to Complainant did not delay or negatively affect the counselling .
The Agency also found that OEO cured any harm that Complainant may have suffered. The
Agency concluded that Complainant did not identify any har m that he suffered as a result of the
Agency’s actions regarding the processing of his complaint , and he did not show that the Agency’s
actions affected the outcome of the complaint.
Complainant appealed the Agency’s final decision , but he did not submit any arguments in support
of his appeal. The Commission issued its decision in Jacinto Q. v. Equal Employment Opportunity
Commission , EEOC Appeal No. 0120162639 (Nov. 27, 2019) . As an initial matter, the
Commission found that the record d id not establish that the Agency administered EEO counseling
in a manner designed to intimidate or deter Complainant from filing a formal EEO complaint, or that the Agency processed Complainant’s complaint improperly.
Regarding the non -selections, the Commission assume d, for purposes of analysis only and without
so finding, that Complainant established prima facie cases of discrimination based on disability and reprisal. The Commission then found that the Agency articulated legitimate,
nondiscriminatory reas ons for its actions . For example, two selecting official s stated that they only
considered candidates from the Best Qualified and Merit Promotion certificates because those certificates had the largest number of best -qualified candidates.
The Commission determined that Complainant ha d not shown that the articulated reasons were a
pretext for discrimination. Specifically, the Commission found that Complainant did not refute the
Agency’s explanation that they considered candidates from the Best Qualified and Merit
Promotion certificates because of the number of qualified candidates on those certificates. Further, the Commission found that Complainant did not present evidence that he was more qualified for
the positions than those selected, all of whom had strong mediation backgrounds and experience
working with the Agency’s mediation program. In addition, the Commission found that Complainant ha d not shown that a discriminatory reason
more likely than not mot ivated the Agency’s actions. The Commission noted that Complainant did
not offer any evidence to support his allegation that the Agency cancelled the Baltimore and
Houston vacancies to prevent him from being selected for the positions, nor was there eviden ce
that the Agency manipulated the recruitment and staffing process to prevent Complainant’s consideration and selection.
The Commission determined that Complainant’s unsupported speculation was insufficient to
establish pretext and concluded that Complainant did not establish that the Agency discriminated
against him based on disability or in reprisal for protected EEO activity, when it did not select him
for any of the ADR Mediator positions. Complainant filed the instant req uest for reconsideration and submitted a brief in support of his
request. The Agency did not submit a response to Complainant’s request for reconsideration.
CONTENTIONS ON REQUEST FOR RECONSIDERATION
Complainant argues that the appellate decision “misconstrued” material facts . Complainant notes ,
for example, that the Commission determined that selecting officials used only competitive
certificates because they provided a larger number of qualified candidates . Complainant argues
that there is “no testimonial or documentary” evidence that supports this finding. Complainant also argues that the Commission “ did not rely on the appropriate law.” Specifically, Complainant states
that there were “many weaknesses, implausibility, inconsistencies, incoherencies, or
contradictions” in the Agency’s proffered legitimate, nondiscriminatory reasons that a reasonable fact-finder would rationally find them unworthy of credence. Complainant states that the Agency
did not present any evidence to support its “subjective and unsupported” claim that the workload
increased to justify moving the Baltimore vacancy to Philade lphia. Complainant also argues that
management officials made contradictory statements regarding who cancelled the Baltimore
vacancy.
Complainant argues that a “new decision” may have a substantial impact on Agency policies,
procedures, and operations because it will likely result in a requirement to publish the Agency’s
written internal procedures for processing EEO complaints. For example, Complainant states that the Commission does not provide written guidance for complainants to request a copy of the same complaint file that is in the Commission’s internal database. In addition, Complainant state s that
the Commission should publish a public notice advising complainants of a “virus,” which
automatically deletes the complaint file in the portal when an appellate decision is issued.
Complainant asserts that the appellate decision erred in finding no merit to his allegation of improper processing of his complaint , and that the Agency ’s intentional hostility , and refusal to
adequately process his complaint, was t o intimidate him into dropping his complaint. Complainant
states that he was not advised of his right to an “inter -agen cy adjudicator” and that when he
requested one, his request was denied. Complainant notes that the Commission has remanded
complaints when complainants were not provided with appropriate rights.
4 There is no evidence of a computer “virus.” The Commission informed Complainant that a
“design flaw” prevented access to his closed appeal in the portal, but once Complainant’s request for reconsideration was opened, the underlying documents were copied to the new request file.
Complainant also alleges a conflict of interest, demonstra ted by “corrupt behavior .” Complainant
states that the Commission designed its internal complaint proces s to “secretly manipulate the
record to cover up discrimination and retaliation .” Complainant asserts that the Agency provided
the Commission with a document that was “bookmarked and word searchable,” while he was given
a “collection of unnumbered and unorganized documents ,” and when he requested access to the
same complaint file used by the Commission, he did not get a response. Complainant states tha t
his correspondences with an anonymous email mailbox from an “Attorney of the Day” was done
to prevent him from being able to refer to a specific Commission employee who may have provided
misinformation. Complainant requests that the Commission vacate the prior appellate decision and remand his
complaint for a supplemental investigation and further adjudication. In addition, Complainant asks
that he be provided with new notices of his right to elect : (1) another final decision ; (2) a hearing
before a contract EEOC administrative judge or inter -agency adjudicator ; or (3) file a civil
complaint.
Legal Analysis:
EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider
any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). For the
reasons that follow, the Commission DENIES Complainant’s request for reconsideration for
failure to meet the regulatory criteria.
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
2 As a procedural matter, we note that the Equal Employment Opportunity Commission (EEOC)
is both the respondent agency and the adjudicatory authority issuing this decision. For the purposes of this decision, the term “Commission” or “EEOC” is used when referring to the adjudicatory authority and the term “Agency” is used when referring to EEOC in its role as the respondent
party. In all cases, the Commission in its adjudicatory capacity operates independently from those offices charged with in -house processing and resolution of discrimination complaints. The Chair
has abstained from participation in this decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for employment at the Agency. On April 10, 2014, the Agency posted a vacancy for an Alternative Dispute Resolution (ADR) Mediator in multiple locations, under vacancy number D14- OFP-1095443-085-
TMD. Complainant contacted a Human Resources Specialist (HRS) and provided his documents to apply for the positions in Baltimore, New York City, and Houston. HRS referred Complainant’s application to the respective selecting officials, noting that Complainant wished to be considered
under the following non-competitive authorities : Schedule A,
3 Veterans Employment
Opportunities Act of 1998 (VEOA), Reinstatement Eligibles, and 30% or more Disabled Veterans. Complainant was not selected for the position in New York City. The Agency moved the Baltimore vacancy to Philadelphia because two ADR Mediators in Philadelphia retired, which created a
greater need to hire mediators in that office . The Agency also moved the Houston vacancy to
Miami bec ause it reassigned an internal ADR Mediator from Miami to Houston. On August 5,
2014, the Agency posted a vacancy for ADR Mediators in Philadelphia and Miami, under vacancy
number D14 -OFP-1183231-132- TMD. Complainant requested that he be considered for the se two
vacancies, and he was not selected .
On October 10, 2014, Complainant filed an equal employment opportunity ( EEO ) complaint
alleging that the Agency discriminated against him on the basis of disability and in reprisal for prior protected EEO activity when :
(1) on August 18, 2014, Complainant was not selected for the GS -0301- 12 ADR Mediator
position advertised under Job Announcement No. D14- OFP-1095443-085- TMD, which
advertised vacant positions located in Baltimore, Maryland; New York, New York; Houston, Texas; and an “unspecified” location, which later was identified as Seattle, Washington;
(2) Complainant was not selected for the GS -0301- 12 ADR Mediator position advertised
under Job Announcement No. D14- OFP-1183231-132- TMD, which advertised vacant
positions located in Miami, Florida, and Philadelphia, Pennsylvania; and
(3) unknown EEO management and Human Resource officials, including HRS,
(a) conspired to manipulate the recruitment and staffing for ADR Mediator positions;
(b) conspired to cancel and move the advertised vacancy in the Houston, Texas, office to the Miami, Florida, office;
3 The “Schedule A” hiring authority is a non- competitive appointment authority used for hiring
applicants with disabilities. See generally 5 C.F.R. § 213.3102(u).
(c) conspired to cancel and move the advertised vacancy in the Baltimore, Maryland, office
to the Philadelphia, Pennsylvania, office; and
(d) failed to follow established procedures for the receipt and administration of applications received from applicants with disabilities.
Complainant also alleged that management officials authorized and administered EEO counseling
designed to intimidate and deter him from filing a formal EEO complaint. Specifically, Complainant alleged that:
(1) the EEO Counselor failed to identify herself or her role when she initial ly contacted
Complainant, causing an unnecessary delay in the start of EEO counseling;
(2) the EEO Counselor initially refused to respond via email to Complainant’s specific inquiries regarding his initial contact;
(3) the EEO Counselor restricted the amount of time available for EEO counseling by not promptly responding to Complainant’s e -mails. It was only when Complainant involved
the EEO Counselor’s supervisor, the Deputy Director of the Office of Equal Opportunity (OEO), that the EEO Counselor understood that Complainant could submit communications in writing;
(4) the EEO Counselor recorded Complainant’s claims and bases incorrectly;
(5) the EEO Counselor conducted an insufficient limited inquiry, closed out EEO counseling prematurely, and did not ask whether Complainant would agree to an extension of the EEO counseling to conduct a sufficient limited inquiry;
(6) the EEO Counselor failed to identify the name and title of any involved management official , or any documents reviewed during EEO counseling;
(7) the EEO Counselor failed to provide Complainant with the specific reasons why he was not selected by the responsible management officials , or the reasons why the positions
were cancelled and moved to another location;
(8) the EEO Counselor failed to identify any resolving official , or any attempts at resolution
during the counseling; and
(9) the Agency failed to fram e his allegations accurately in the Notice of Acceptance.
The Agency informed Complainant that it would process the claims concerning the processing of
his complaint pursuant to Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD -110) (Aug ust 3, 2015).
Complainant requested a final decision from t he Agency, whic h found that Complainant did not
establish that it discriminated against him as alleged. The Agency found that Complainant did not
establish prima facie cases of discrimination based on disability or reprisal. The Agency found that
management officials nonetheless had articulated legitimate, nondiscriminatory reasons for its
actions , and that Complainant did not show that the articulated reasons were a pretext for
discrimination.
The Agency also found that there was no merit to Complainant’s claim of improper complaint -
processing. For example, the Agency stated that the EEO Counselor “took all reasonable measures
to ensure that his complaint was timely filed,” and that her failure to identify hers elf as an EEO
Counselor in her initial email to Complainant did not delay or negatively affect the counselling .
The Agency also found that OEO cured any harm that Complainant may have suffered. The
Agency concluded that Complainant did not identify any har m that he suffered as a result of the
Agency’s actions regarding the processing of his complaint , and he did not show that the Agency’s
actions affected the outcome of the complaint.
Complainant appealed the Agency’s final decision , but he did not submit any arguments in support
of his appeal. The Commission issued its decision in Jacinto Q. v. Equal Employment Opportunity
Commission , EEOC Appeal No. 0120162639 (Nov. 27, 2019) . As an initial matter, the
Commission found that the record d id not establish that the Agency administered EEO counseling
in a manner designed to intimidate or deter Complainant from filing a formal EEO complaint, or that the Agency processed Complainant’s complaint improperly.
Regarding the non -selections, the Commission assume d, for purposes of analysis only and without
so finding, that Complainant established prima facie cases of discrimination based on disability and reprisal. The Commission then found that the Agency articulated legitimate,
nondiscriminatory reas ons for its actions . For example, two selecting official s stated that they only
considered candidates from the Best Qualified and Merit Promotion certificates because those certificates had the largest number of best -qualified candidates.
The Commission determined that Complainant ha d not shown that the articulated reasons were a
pretext for discrimination. Specifically, the Commission found that Complainant did not refute the
Agency’s explanation that they considered candidates from the Best Qualified and Merit
Promotion certificates because of the number of qualified candidates on those certificates. Further, the Commission found that Complainant did not present evidence that he was more qualified for
the positions than those selected, all of whom had strong mediation backgrounds and experience
working with the Agency’s mediation program. In addition, the Commission found that Complainant ha d not shown that a discriminatory reason
more likely than not mot ivated the Agency’s actions. The Commission noted that Complainant did
not offer any evidence to support his allegation that the Agency cancelled the Baltimore and
Houston vacancies to prevent him from being selected for the positions, nor was there eviden ce
that the Agency manipulated the recruitment and staffing process to prevent Complainant’s consideration and selection.
The Commission determined that Complainant’s unsupported speculation was insufficient to
establish pretext and concluded that Complainant did not establish that the Agency discriminated
against him based on disability or in reprisal for protected EEO activity, when it did not select him
for any of the ADR Mediator positions. Complainant filed the instant req uest for reconsideration and submitted a brief in support of his
request. The Agency did not submit a response to Complainant’s request for reconsideration.
CONTENTIONS ON REQUEST FOR RECONSIDERATION
Complainant argues that the appellate decision “misconstrued” material facts . Complainant notes ,
for example, that the Commission determined that selecting officials used only competitive
certificates because they provided a larger number of qualified candidates . Complainant argues
that there is “no testimonial or documentary” evidence that supports this finding. Complainant also argues that the Commission “ did not rely on the appropriate law.” Specifically, Complainant states
that there were “many weaknesses, implausibility, inconsistencies, incoherencies, or
contradictions” in the Agency’s proffered legitimate, nondiscriminatory reasons that a reasonable fact-finder would rationally find them unworthy of credence. Complainant states that the Agency
did not present any evidence to support its “subjective and unsupported” claim that the workload
increased to justify moving the Baltimore vacancy to Philade lphia. Complainant also argues that
management officials made contradictory statements regarding who cancelled the Baltimore
vacancy.
Complainant argues that a “new decision” may have a substantial impact on Agency policies,
procedures, and operations because it will likely result in a requirement to publish the Agency’s
written internal procedures for processing EEO complaints. For example, Complainant states that the Commission does not provide written guidance for complainants to request a copy of the same complaint file that is in the Commission’s internal database. In addition, Complainant state s that
the Commission should publish a public notice advising complainants of a “virus,” which
automatically deletes the complaint file in the portal when an appellate decision is issued.
Complainant asserts that the appellate decision erred in finding no merit to his allegation of improper processing of his complaint , and that the Agency ’s intentional hostility , and refusal to
adequately process his complaint, was t o intimidate him into dropping his complaint. Complainant
states that he was not advised of his right to an “inter -agen cy adjudicator” and that when he
requested one, his request was denied. Complainant notes that the Commission has remanded
complaints when complainants were not provided with appropriate rights.
4 There is no evidence of a computer “virus.” The Commission informed Complainant that a
“design flaw” prevented access to his closed appeal in the portal, but once Complainant’s request for reconsideration was opened, the underlying documents were copied to the new request file.
Complainant also alleges a conflict of interest, demonstra ted by “corrupt behavior .” Complainant
states that the Commission designed its internal complaint proces s to “secretly manipulate the
record to cover up discrimination and retaliation .” Complainant asserts that the Agency provided
the Commission with a document that was “bookmarked and word searchable,” while he was given
a “collection of unnumbered and unorganized documents ,” and when he requested access to the
same complaint file used by the Commission, he did not get a response. Complainant states tha t
his correspondences with an anonymous email mailbox from an “Attorney of the Day” was done
to prevent him from being able to refer to a specific Commission employee who may have provided
misinformation. Complainant requests that the Commission vacate the prior appellate decision and remand his
complaint for a supplemental investigation and further adjudication. In addition, Complainant asks
that he be provided with new notices of his right to elect : (1) another final decision ; (2) a hearing
before a contract EEOC administrative judge or inter -agency adjudicator ; or (3) file a civil
complaint.
ANALYSIS AND FINDINGS
As an initial matter, we note that a request for reconsideration is not a second appeal to the Commission. See, e.g., Jules H. v. Dep’t of Homeland Sec., EEOC Appeal No. 0520160173 (Apr.
22, 2016). Here, we find that Complainant could have raised all the arguments he raises in this request when he filed the initial appeal. Complainant raised no arguments during the ini tial appeal.
A request for reconsideration is not appropriate as a replacement for arguments neglected to be made in the initial appeal. Nevertheless, although not required, we will consider Complainant’s
arguments which could have been raised during the i nitial appeal.
Conflict of Interest Conflicts of interest can arise when the responsible management official s, alleged to have engaged
in discriminatory conduct , are the Agency head ; a member of the immediate staff of the Agency
head ; within the Agency’s EEO office; or occupy a high -level position of influence in the Agency .
See EEO
MD-110 at Chap. 1, § IV.B. Complainant argues that there is a conflict of interest due to
a “secret internal process” that manipulates the process to “cover up discrimination.” However,
we find that Complainant’s allegations do not raise a conflict of interest. In this case, the
responsible management officials are those who deci ded not to hire Complainant for the various
ADR Mediator positions, and the re is no evidence that they we re staff members who work for the
Agency head, or that they had influence over those who work in OEO . As such, we find that there
is no conflict of interest in Complainant’s case.
5 We note that Complainant’s right to file a civil action is included at the end of this decision.
Complaint Processing
When a complainant raises allegations of dissatisfaction regarding the processing of his or her pending complaint, the Agency official responsible for the quality of complaints processing must add a record of the complainant’s concerns, and any actions the Agency took to resolve the
concerns, to the complaint file maintained on the underlying complaint. See EEO MD -110 at Chap .
5, § IV.A.12 and § IV.D. Complainant notes his dissatisfaction with the processing of his EEO
complaint. Specifically , Complainant states that he received anonymous emails from an “Attorney
of the Day,” which prevent ed him from naming a Commission employee who provided
misinformation; was provided with a collection of unnumbered and unorganized documents that
differed from what OEO provided to OFO ; and had to use a system which contained a “computer
bug.” However, we find that Complainant has not shown that he was provided any misinformation
by an “ Attorney of the Day ”; that his documents differed from those considered by OFO ; or that
any “computer bug” affected the processing of his EEO complaint.
Complainant also argues that he was not advised of his right to an “inter -agency adjudicator ,” and
that when he requested this option, it was denied. However, Complainant has not provided any evidence showing that he was offered, or denied, an option for an “inter -agency adjudicator.”
Also, we find no such “right” or need for another agency to be involved in processing the instant complaint. Further, Complainant only makes unsupported assertions of improper behavior during
the processing of his EEO complaint. | Jacinto Q .,1
Complainant,
v.
Janet Dhillon,2
Chair,
Equal Employment Opportunity Commission,
Agency.
Request No. 2020001273
Appeal No. 0120162639
Agency No. 2014-0041
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120162639 (November 27, 2019).
EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider
any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). For the
reasons that follow, the Commission DENIES Complainant’s request for reconsideration for
failure to meet the regulatory criteria.
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
2 As a procedural matter, we note that the Equal Employment Opportunity Commission (EEOC)
is both the respondent agency and the adjudicatory authority issuing this decision. For the purposes of this decision, the term “Commission” or “EEOC” is used when referring to the adjudicatory authority and the term “Agency” is used when referring to EEOC in its role as the respondent
party. In all cases, the Commission in its adjudicatory capacity operates independently from those offices charged with in -house processing and resolution of discrimination complaints. The Chair
has abstained from participation in this decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for employment at the Agency. On April 10, 2014, the Agency posted a vacancy for an Alternative Dispute Resolution (ADR) Mediator in multiple locations, under vacancy number D14- OFP-1095443-085-
TMD. Complainant contacted a Human Resources Specialist (HRS) and provided his documents to apply for the positions in Baltimore, New York City, and Houston. HRS referred Complainant’s application to the respective selecting officials, noting that Complainant wished to be considered
under the following non-competitive authorities : Schedule A,
3 Veterans Employment
Opportunities Act of 1998 (VEOA), Reinstatement Eligibles, and 30% or more Disabled Veterans. Complainant was not selected for the position in New York City. The Agency moved the Baltimore vacancy to Philadelphia because two ADR Mediators in Philadelphia retired, which created a
greater need to hire mediators in that office . The Agency also moved the Houston vacancy to
Miami bec ause it reassigned an internal ADR Mediator from Miami to Houston. On August 5,
2014, the Agency posted a vacancy for ADR Mediators in Philadelphia and Miami, under vacancy
number D14 -OFP-1183231-132- TMD. Complainant requested that he be considered for the se two
vacancies, and he was not selected .
On October 10, 2014, Complainant filed an equal employment opportunity ( EEO ) complaint
alleging that the Agency discriminated against him on the basis of disability and in reprisal for prior protected EEO activity when :
(1) on August 18, 2014, Complainant was not selected for the GS -0301- 12 ADR Mediator
position advertised under Job Announcement No. D14- OFP-1095443-085- TMD, which
advertised vacant positions located in Baltimore, Maryland; New York, New York; Houston, Texas; and an “unspecified” location, which later was identified as Seattle, Washington;
(2) Complainant was not selected for the GS -0301- 12 ADR Mediator position advertised
under Job Announcement No. D14- OFP-1183231-132- TMD, which advertised vacant
positions located in Miami, Florida, and Philadelphia, Pennsylvania; and
(3) unknown EEO management and Human Resource officials, including HRS,
(a) conspired to manipulate the recruitment and staffing for ADR Mediator positions;
(b) conspired to cancel and move the advertised vacancy in the Houston, Texas, office to the Miami, Florida, office;
3 The “Schedule A” hiring authority is a non- competitive appointment authority used for hiring
applicants with disabilities. See generally 5 C.F.R. § 213.3102(u).
(c) conspired to cancel and move the advertised vacancy in the Baltimore, Maryland, office
to the Philadelphia, Pennsylvania, office; and
(d) failed to follow established procedures for the receipt and administration of applications received from applicants with disabilities.
Complainant also alleged that management officials authorized and administered EEO counseling
designed to intimidate and deter him from filing a formal EEO complaint. Specifically, Complainant alleged that:
(1) the EEO Counselor failed to identify herself or her role when she initial ly contacted
Complainant, causing an unnecessary delay in the start of EEO counseling;
(2) the EEO Counselor initially refused to respond via email to Complainant’s specific inquiries regarding his initial contact;
(3) the EEO Counselor restricted the amount of time available for EEO counseling by not promptly responding to Complainant’s e -mails. It was only when Complainant involved
the EEO Counselor’s supervisor, the Deputy Director of the Office of Equal Opportunity (OEO), that the EEO Counselor understood that Complainant could submit communications in writing;
(4) the EEO Counselor recorded Complainant’s claims and bases incorrectly;
(5) the EEO Counselor conducted an insufficient limited inquiry, closed out EEO counseling prematurely, and did not ask whether Complainant would agree to an extension of the EEO counseling to conduct a sufficient limited inquiry;
(6) the EEO Counselor failed to identify the name and title of any involved management official , or any documents reviewed during EEO counseling;
(7) the EEO Counselor failed to provide Complainant with the specific reasons why he was not selected by the responsible management officials , or the reasons why the positions
were cancelled and moved to another location;
(8) the EEO Counselor failed to identify any resolving official , or any attempts at resolution
during the counseling; and
(9) the Agency failed to fram e his allegations accurately in the Notice of Acceptance.
The Agency informed Complainant that it would process the claims concerning the processing of
his complaint pursuant to Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD -110) (Aug ust 3, 2015).
Complainant requested a final decision from t he Agency, whic h found that Complainant did not
establish that it discriminated against him as alleged. The Agency found that Complainant did not
establish prima facie cases of discrimination based on disability or reprisal. The Agency found that
management officials nonetheless had articulated legitimate, nondiscriminatory reasons for its
actions , and that Complainant did not show that the articulated reasons were a pretext for
discrimination.
The Agency also found that there was no merit to Complainant’s claim of improper complaint -
processing. For example, the Agency stated that the EEO Counselor “took all reasonable measures
to ensure that his complaint was timely filed,” and that her failure to identify hers elf as an EEO
Counselor in her initial email to Complainant did not delay or negatively affect the counselling .
The Agency also found that OEO cured any harm that Complainant may have suffered. The
Agency concluded that Complainant did not identify any har m that he suffered as a result of the
Agency’s actions regarding the processing of his complaint , and he did not show that the Agency’s
actions affected the outcome of the complaint.
Complainant appealed the Agency’s final decision , but he did not submit any arguments in support
of his appeal. The Commission issued its decision in Jacinto Q. v. Equal Employment Opportunity
Commission , EEOC Appeal No. 0120162639 (Nov. 27, 2019) . As an initial matter, the
Commission found that the record d id not establish that the Agency administered EEO counseling
in a manner designed to intimidate or deter Complainant from filing a formal EEO complaint, or that the Agency processed Complainant’s complaint improperly.
Regarding the non -selections, the Commission assume d, for purposes of analysis only and without
so finding, that Complainant established prima facie cases of discrimination based on disability and reprisal. The Commission then found that the Agency articulated legitimate,
nondiscriminatory reas ons for its actions . For example, two selecting official s stated that they only
considered candidates from the Best Qualified and Merit Promotion certificates because those certificates had the largest number of best -qualified candidates.
The Commission determined that Complainant ha d not shown that the articulated reasons were a
pretext for discrimination. Specifically, the Commission found that Complainant did not refute the
Agency’s explanation that they considered candidates from the Best Qualified and Merit
Promotion certificates because of the number of qualified candidates on those certificates. Further, the Commission found that Complainant did not present evidence that he was more qualified for
the positions than those selected, all of whom had strong mediation backgrounds and experience
working with the Agency’s mediation program. In addition, the Commission found that Complainant ha d not shown that a discriminatory reason
more likely than not mot ivated the Agency’s actions. The Commission noted that Complainant did
not offer any evidence to support his allegation that the Agency cancelled the Baltimore and
Houston vacancies to prevent him from being selected for the positions, nor was there eviden ce
that the Agency manipulated the recruitment and staffing process to prevent Complainant’s consideration and selection.
The Commission determined that Complainant’s unsupported speculation was insufficient to
establish pretext and concluded that Complainant did not establish that the Agency discriminated
against him based on disability or in reprisal for protected EEO activity, when it did not select him
for any of the ADR Mediator positions. Complainant filed the instant req uest for reconsideration and submitted a brief in support of his
request. The Agency did not submit a response to Complainant’s request for reconsideration.
CONTENTIONS ON REQUEST FOR RECONSIDERATION
Complainant argues that the appellate decision “misconstrued” material facts . Complainant notes ,
for example, that the Commission determined that selecting officials used only competitive
certificates because they provided a larger number of qualified candidates . Complainant argues
that there is “no testimonial or documentary” evidence that supports this finding. Complainant also argues that the Commission “ did not rely on the appropriate law.” Specifically, Complainant states
that there were “many weaknesses, implausibility, inconsistencies, incoherencies, or
contradictions” in the Agency’s proffered legitimate, nondiscriminatory reasons that a reasonable fact-finder would rationally find them unworthy of credence. Complainant states that the Agency
did not present any evidence to support its “subjective and unsupported” claim that the workload
increased to justify moving the Baltimore vacancy to Philade lphia. Complainant also argues that
management officials made contradictory statements regarding who cancelled the Baltimore
vacancy.
Complainant argues that a “new decision” may have a substantial impact on Agency policies,
procedures, and operations because it will likely result in a requirement to publish the Agency’s
written internal procedures for processing EEO complaints. For example, Complainant states that the Commission does not provide written guidance for complainants to request a copy of the same complaint file that is in the Commission’s internal database. In addition, Complainant state s that
the Commission should publish a public notice advising complainants of a “virus,” which
automatically deletes the complaint file in the portal when an appellate decision is issued.
Complainant asserts that the appellate decision erred in finding no merit to his allegation of improper processing of his complaint , and that the Agency ’s intentional hostility , and refusal to
adequately process his complaint, was t o intimidate him into dropping his complaint. Complainant
states that he was not advised of his right to an “inter -agen cy adjudicator” and that when he
requested one, his request was denied. Complainant notes that the Commission has remanded
complaints when complainants were not provided with appropriate rights.
4 There is no evidence of a computer “virus.” The Commission informed Complainant that a
“design flaw” prevented access to his closed appeal in the portal, but once Complainant’s request for reconsideration was opened, the underlying documents were copied to the new request file.
Complainant also alleges a conflict of interest, demonstra ted by “corrupt behavior .” Complainant
states that the Commission designed its internal complaint proces s to “secretly manipulate the
record to cover up discrimination and retaliation .” Complainant asserts that the Agency provided
the Commission with a document that was “bookmarked and word searchable,” while he was given
a “collection of unnumbered and unorganized documents ,” and when he requested access to the
same complaint file used by the Commission, he did not get a response. Complainant states tha t
his correspondences with an anonymous email mailbox from an “Attorney of the Day” was done
to prevent him from being able to refer to a specific Commission employee who may have provided
misinformation. Complainant requests that the Commission vacate the prior appellate decision and remand his
complaint for a supplemental investigation and further adjudication. In addition, Complainant asks
that he be provided with new notices of his right to elect : (1) another final decision ; (2) a hearing
before a contract EEOC administrative judge or inter -agency adjudicator ; or (3) file a civil
complaint.
ANALYSIS AND FINDINGS
As an initial matter, we note that a request for reconsideration is not a second appeal to the Commission. See, e.g., Jules H. v. Dep’t of Homeland Sec., EEOC Appeal No. 0520160173 (Apr.
22, 2016). Here, we find that Complainant could have raised all the arguments he raises in this request when he filed the initial appeal. Complainant raised no arguments during the ini tial appeal.
A request for reconsideration is not appropriate as a replacement for arguments neglected to be made in the initial appeal. Nevertheless, although not required, we will consider Complainant’s
arguments which could have been raised during the i nitial appeal.
Conflict of Interest Conflicts of interest can arise when the responsible management official s, alleged to have engaged
in discriminatory conduct , are the Agency head ; a member of the immediate staff of the Agency
head ; within the Agency’s EEO office; or occupy a high -level position of influence in the Agency .
See EEO
MD-110 at Chap. 1, § IV.B. Complainant argues that there is a conflict of interest due to
a “secret internal process” that manipulates the process to “cover up discrimination.” However,
we find that Complainant’s allegations do not raise a conflict of interest. In this case, the
responsible management officials are those who deci ded not to hire Complainant for the various
ADR Mediator positions, and the re is no evidence that they we re staff members who work for the
Agency head, or that they had influence over those who work in OEO . As such, we find that there
is no conflict of interest in Complainant’s case.
5 We note that Complainant’s right to file a civil action is included at the end of this decision.
Complaint Processing
When a complainant raises allegations of dissatisfaction regarding the processing of his or her pending complaint, the Agency official responsible for the quality of complaints processing must add a record of the complainant’s concerns, and any actions the Agency took to resolve the
concerns, to the complaint file maintained on the underlying complaint. See EEO MD -110 at Chap .
5, § IV.A.12 and § IV.D. Complainant notes his dissatisfaction with the processing of his EEO
complaint. Specifically , Complainant states that he received anonymous emails from an “Attorney
of the Day,” which prevent ed him from naming a Commission employee who provided
misinformation; was provided with a collection of unnumbered and unorganized documents that
differed from what OEO provided to OFO ; and had to use a system which contained a “computer
bug.” However, we find that Complainant has not shown that he was provided any misinformation
by an “ Attorney of the Day ”; that his documents differed from those considered by OFO ; or that
any “computer bug” affected the processing of his EEO complaint.
Complainant also argues that he was not advised of his right to an “inter -agency adjudicator ,” and
that when he requested this option, it was denied. However, Complainant has not provided any evidence showing that he was offered, or denied, an option for an “inter -agency adjudicator.”
Also, we find no such “right” or need for another agency to be involved in processing the instant complaint. Further, Complainant only makes unsupported assertions of improper behavior during
the processing of his EEO complaint. Accordingly, we find that Complainant has not shown that his complaint was improperly processed.
Substantial Impact Complainant argues a possible substant ial impact on the policies, practices, or operations of the
Agency because a “new decision” will likely result in a requirement to publish the Agency’s
written internal procedures. However, we find that Complainant has not shown any improprieties
in the processing of his complaint, and he has not shown a need to change the Agency’s policies,
practices, or operations.
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology, Inc. , 425 F. Supp. 318, 324 (D. Mass.), aff’d , 545 F.2d 222 (1st Cir. 1976).
For Complainant to prevail, he must first establish a prima facie case of discrimin ation by
presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. Furnco Constr.
Corp. v. Waters, 438 U.S. 567, 577 (1978); McDonnell Douglas , 411 U.S. at 802 n.13. Once
Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981).
If the Agency is successful, the burden reverts back to Complainant to demonstrate by a
preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507-08 (1993); U.S. Postal Service v.
Aikens, 460 U.S. 711, 715-716 (1983).
Assuming, arguendo, that Complainant established a prima facie case of discrimination based on disability and in reprisal for protected EEO activity, the previous decision correctly found that the Agency articulated legitimate, nondiscriminatory reasons for not selecting Complainant. Management officials for the New York City and Miami vacancies stated that they only considered
candidates from the competitive certificates due to the large number of qualified candidates on
those certi ficates. The Philadelphia selecting official (PSO) stated that he chose the selectee (S1)
because he was an internal candidate with a reputation as an “excellent worker,” with experience
in negotiation and mediation and a strong EEO background.
Further, the previous decision correctly found that Complainant did not show that the proffered
reason s were pretext for discrimination. In a non- selection case, pretext may be found where the
complainant's qualifications are plainly superior to the qualifications of the selectee. See Wasser
v. Dep't of Labor, EEOC Request No. 05940058 (Nov. 2, 1995); Bauer v. Bailar , 647 F.2d 1037,
1048 (10th Cir. 1981). In his request for reconsideration, Complainant argues that he was more qualified than S1 because he ha d more than 14 years of relevant EEO -related experience, while S1
only had five years of “ EEO training .” However, S1’s resume shows that he had five years of
experience as an EEO Investigator, and not “training ,” and as noted above, S1 had experience in
negotiation and mediation. In addition, we note that the Commission has found that number of
years of experience, alone, is insufficient to establish that a candidate's qualifications are plainly
superior. See Kopkas v. U.S. Postal Serv., EEOC Appeal No. 0120112758 (Oct. 13, 2011). As
such, Complainant has not demonstrated that he was a plainly superior candidate, as compared to S1.
A complainant can also establish pretext in two ways: “(1) indirectly, by showing that the
employer's proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination more li kely
motivated the employer.” Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th
Cir. 2000) (internal quotation marks omitted); see also McDonnell Douglas, 411 U.S. at 804-05.
Here, Complainant argues that there are “many weaknesses, implausibility, inconsistencies,
incoherencies, or contradictions” in the management officials’ responses.
For example, Complainant argues that it is “very suspicious” that the selecting official for the
Miami vacancy did not consider the applicants on the non- competitive certificates. However, the
Commission has found that , although federal agencies are authorized to use the Schedule A hiring
authority when considering people with disabilities, the use of this authority is not mandatory.
In addition, while Executive Order 13548 provides that agencies shall generally increase utilization
of Schedule A hiring authority, the Executive Order does not mandate the use of Schedule A
authority in any particular hiring decision. See Maricruz Y. v. Dep’t of Homeland S ecurity , EEOC
Appeal No. 2019000976 (Dec. 10, 2019) ; Complainant v. Dep't of Veterans Affairs , EEOC Appeal
No. 0120131609 (Dec . 16, 2014); Hein v. National Archives and Records Administration, EEOC
Request No. 0520130314 (Aug. 5, 2013) . As such, we do not agree with Complainant that the
Agency’s decision to only consider the competitive certificates was “very suspicious.”
Complainant also argues that pretext is shown because the Agency’s articulated reason for moving
the Baltimore vacancy to Philad elphia is not supported by any evidence in the record. However,
the record contains an affidavit from the Philadelphia District Resource Manager (PDRM) , who
stated that the Philadelphia office was short two mediators due to retirements, and it had a greate r
need for mediators due to the volume of work. In addition, Complainant argues that there are
inconsistencies in the record because PDRM stated that she returned the certificates “unused,”6
while PSO stated that he made a selection from the merit certificate; and there are conflicting
statements regarding who made the decision to move the Baltimore vacancy. Complainant also
argues that while PSO stated that he did not have enough information to determine if Complainant
was qualified or disabled, Complainant was referred under Schedule A, and PSO was aware that
Complainant was disabled and qualified. However, these purported inconsistencies do not prove
that PSO’s reasons for selecting S1 are not worthy of belief, and they are insufficient to establish
pretext for discrimination .
We find that the Commission’s prior appellate decision did not contain a clearly erroneous
interpretation of material fact or law, and that it correctly found that Complainant did not establish
that the Agency discriminated against him based on his disability or in reprisal for protected EEO activity , when it did not select him for a position as an ADR Mediator.
CONCLUSION
After reviewing the previous decision and the entire record, the Commission finds that the re quest
fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120162639 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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.
6 We note that PDRM stated that she returned the certificates in USAJOBS, and that she returned
the “manual” certificates unused.
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 wor k.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
/S/ Bernadette B. Wilson Bernadette B. Wilson’s signature
Bernadette B. Wilson
Executive Officer
Executive Secretariat
October 5, 2020
Date | [
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"Wasser v. Dep't of Labor, EEOC Request No. 05940058 (Nov. 2, 1995)",
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259 | https://www.eeoc.gov/sites/default/files/decisions/2021_01_19/2020001273.pdf | 2020001273.pdf | PDF | application/pdf | 27,926 | Jacinto Q .,1 Complainant, v. Janet Dhillon,2 Chair, Equal Employment Opportunity Commission, Agency. | November 27, 2019 | Appeal Number: 0120162639
Background:
At the time of events giving rise to this complaint, Complainant was an applicant for employment at the Agency. On April 10, 2014, the Agency posted a vacancy for an Alternative Dispute Resolution (ADR) Mediator in multiple locations, under vacancy number D14- OFP-1095443-085-
TMD. Complainant contacted a Human Resources Specialist (HRS) and provided his documents to apply for the positions in Baltimore, New York City, and Houston. HRS referred Complainant’s application to the respective selecting officials, noting that Complainant wished to be considered
under the following non-competitive authorities : Schedule A,
3 Veterans Employment
Opportunities Act of 1998 (VEOA), Reinstatement Eligibles, and 30% or more Disabled Veterans. Complainant was not selected for the position in New York City. The Agency moved the Baltimore vacancy to Philadelphia because two ADR Mediators in Philadelphia retired, which created a
greater need to hire mediators in that office . The Agency also moved the Houston vacancy to
Miami bec ause it reassigned an internal ADR Mediator from Miami to Houston. On August 5,
2014, the Agency posted a vacancy for ADR Mediators in Philadelphia and Miami, under vacancy
number D14 -OFP-1183231-132- TMD. Complainant requested that he be considered for the se two
vacancies, and he was not selected .
On October 10, 2014, Complainant filed an equal employment opportunity ( EEO ) complaint
alleging that the Agency discriminated against him on the basis of disability and in reprisal for prior protected EEO activity when :
(1) on August 18, 2014, Complainant was not selected for the GS -0301- 12 ADR Mediator
position advertised under Job Announcement No. D14- OFP-1095443-085- TMD, which
advertised vacant positions located in Baltimore, Maryland; New York, New York; Houston, Texas; and an “unspecified” location, which later was identified as Seattle, Washington;
(2) Complainant was not selected for the GS -0301- 12 ADR Mediator position advertised
under Job Announcement No. D14- OFP-1183231-132- TMD, which advertised vacant
positions located in Miami, Florida, and Philadelphia, Pennsylvania; and
(3) unknown EEO management and Human Resource officials, including HRS,
(a) conspired to manipulate the recruitment and staffing for ADR Mediator positions;
(b) conspired to cancel and move the advertised vacancy in the Houston, Texas, office to the Miami, Florida, office;
3 The “Schedule A” hiring authority is a non- competitive appointment authority used for hiring
applicants with disabilities. See generally 5 C.F.R. § 213.3102(u).
(c) conspired to cancel and move the advertised vacancy in the Baltimore, Maryland, office
to the Philadelphia, Pennsylvania, office; and
(d) failed to follow established procedures for the receipt and administration of applications received from applicants with disabilities.
Complainant also alleged that management officials authorized and administered EEO counseling
designed to intimidate and deter him from filing a formal EEO complaint. Specifically, Complainant alleged that:
(1) the EEO Counselor failed to identify herself or her role when she initial ly contacted
Complainant, causing an unnecessary delay in the start of EEO counseling;
(2) the EEO Counselor initially refused to respond via email to Complainant’s specific inquiries regarding his initial contact;
(3) the EEO Counselor restricted the amount of time available for EEO counseling by not promptly responding to Complainant’s e -mails. It was only when Complainant involved
the EEO Counselor’s supervisor, the Deputy Director of the Office of Equal Opportunity (OEO), that the EEO Counselor understood that Complainant could submit communications in writing;
(4) the EEO Counselor recorded Complainant’s claims and bases incorrectly;
(5) the EEO Counselor conducted an insufficient limited inquiry, closed out EEO counseling prematurely, and did not ask whether Complainant would agree to an extension of the EEO counseling to conduct a sufficient limited inquiry;
(6) the EEO Counselor failed to identify the name and title of any involved management official , or any documents reviewed during EEO counseling;
(7) the EEO Counselor failed to provide Complainant with the specific reasons why he was not selected by the responsible management officials , or the reasons why the positions
were cancelled and moved to another location;
(8) the EEO Counselor failed to identify any resolving official , or any attempts at resolution
during the counseling; and
(9) the Agency failed to fram e his allegations accurately in the Notice of Acceptance.
The Agency informed Complainant that it would process the claims concerning the processing of
his complaint pursuant to Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD -110) (Aug ust 3, 2015).
Complainant requested a final decision from t he Agency, whic h found that Complainant did not
establish that it discriminated against him as alleged. The Agency found that Complainant did not
establish prima facie cases of discrimination based on disability or reprisal. The Agency found that
management officials nonetheless had articulated legitimate, nondiscriminatory reasons for its
actions , and that Complainant did not show that the articulated reasons were a pretext for
discrimination.
The Agency also found that there was no merit to Complainant’s claim of improper complaint -
processing. For example, the Agency stated that the EEO Counselor “took all reasonable measures
to ensure that his complaint was timely filed,” and that her failure to identify hers elf as an EEO
Counselor in her initial email to Complainant did not delay or negatively affect the counselling .
The Agency also found that OEO cured any harm that Complainant may have suffered. The
Agency concluded that Complainant did not identify any har m that he suffered as a result of the
Agency’s actions regarding the processing of his complaint , and he did not show that the Agency’s
actions affected the outcome of the complaint.
Complainant appealed the Agency’s final decision , but he did not submit any arguments in support
of his appeal. The Commission issued its decision in Jacinto Q. v. Equal Employment Opportunity
Commission , EEOC Appeal No. 0120162639 (Nov. 27, 2019) . As an initial matter, the
Commission found that the record d id not establish that the Agency administered EEO counseling
in a manner designed to intimidate or deter Complainant from filing a formal EEO complaint, or that the Agency processed Complainant’s complaint improperly.
Regarding the non -selections, the Commission assume d, for purposes of analysis only and without
so finding, that Complainant established prima facie cases of discrimination based on disability and reprisal. The Commission then found that the Agency articulated legitimate,
nondiscriminatory reas ons for its actions . For example, two selecting official s stated that they only
considered candidates from the Best Qualified and Merit Promotion certificates because those certificates had the largest number of best -qualified candidates.
The Commission determined that Complainant ha d not shown that the articulated reasons were a
pretext for discrimination. Specifically, the Commission found that Complainant did not refute the
Agency’s explanation that they considered candidates from the Best Qualified and Merit
Promotion certificates because of the number of qualified candidates on those certificates. Further, the Commission found that Complainant did not present evidence that he was more qualified for
the positions than those selected, all of whom had strong mediation backgrounds and experience
working with the Agency’s mediation program. In addition, the Commission found that Complainant ha d not shown that a discriminatory reason
more likely than not mot ivated the Agency’s actions. The Commission noted that Complainant did
not offer any evidence to support his allegation that the Agency cancelled the Baltimore and
Houston vacancies to prevent him from being selected for the positions, nor was there eviden ce
that the Agency manipulated the recruitment and staffing process to prevent Complainant’s consideration and selection.
The Commission determined that Complainant’s unsupported speculation was insufficient to
establish pretext and concluded that Complainant did not establish that the Agency discriminated
against him based on disability or in reprisal for protected EEO activity, when it did not select him
for any of the ADR Mediator positions. Complainant filed the instant req uest for reconsideration and submitted a brief in support of his
request. The Agency did not submit a response to Complainant’s request for reconsideration.
CONTENTIONS ON REQUEST FOR RECONSIDERATION
Complainant argues that the appellate decision “misconstrued” material facts . Complainant notes ,
for example, that the Commission determined that selecting officials used only competitive
certificates because they provided a larger number of qualified candidates . Complainant argues
that there is “no testimonial or documentary” evidence that supports this finding. Complainant also argues that the Commission “ did not rely on the appropriate law.” Specifically, Complainant states
that there were “many weaknesses, implausibility, inconsistencies, incoherencies, or
contradictions” in the Agency’s proffered legitimate, nondiscriminatory reasons that a reasonable fact-finder would rationally find them unworthy of credence. Complainant states that the Agency
did not present any evidence to support its “subjective and unsupported” claim that the workload
increased to justify moving the Baltimore vacancy to Philade lphia. Complainant also argues that
management officials made contradictory statements regarding who cancelled the Baltimore
vacancy.
Complainant argues that a “new decision” may have a substantial impact on Agency policies,
procedures, and operations because it will likely result in a requirement to publish the Agency’s
written internal procedures for processing EEO complaints. For example, Complainant states that the Commission does not provide written guidance for complainants to request a copy of the same complaint file that is in the Commission’s internal database. In addition, Complainant state s that
the Commission should publish a public notice advising complainants of a “virus,” which
automatically deletes the complaint file in the portal when an appellate decision is issued.
Complainant asserts that the appellate decision erred in finding no merit to his allegation of improper processing of his complaint , and that the Agency ’s intentional hostility , and refusal to
adequately process his complaint, was t o intimidate him into dropping his complaint. Complainant
states that he was not advised of his right to an “inter -agen cy adjudicator” and that when he
requested one, his request was denied. Complainant notes that the Commission has remanded
complaints when complainants were not provided with appropriate rights.
4 There is no evidence of a computer “virus.” The Commission informed Complainant that a
“design flaw” prevented access to his closed appeal in the portal, but once Complainant’s request for reconsideration was opened, the underlying documents were copied to the new request file.
Complainant also alleges a conflict of interest, demonstra ted by “corrupt behavior .” Complainant
states that the Commission designed its internal complaint proces s to “secretly manipulate the
record to cover up discrimination and retaliation .” Complainant asserts that the Agency provided
the Commission with a document that was “bookmarked and word searchable,” while he was given
a “collection of unnumbered and unorganized documents ,” and when he requested access to the
same complaint file used by the Commission, he did not get a response. Complainant states tha t
his correspondences with an anonymous email mailbox from an “Attorney of the Day” was done
to prevent him from being able to refer to a specific Commission employee who may have provided
misinformation. Complainant requests that the Commission vacate the prior appellate decision and remand his
complaint for a supplemental investigation and further adjudication. In addition, Complainant asks
that he be provided with new notices of his right to elect : (1) another final decision ; (2) a hearing
before a contract EEOC administrative judge or inter -agency adjudicator ; or (3) file a civil
complaint.
Legal Analysis:
EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider
any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). For the
reasons that follow, the Commission DENIES Complainant’s request for reconsideration for
failure to meet the regulatory criteria.
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
2 As a procedural matter, we note that the Equal Employment Opportunity Commission (EEOC)
is both the respondent agency and the adjudicatory authority issuing this decision. For the purposes of this decision, the term “Commission” or “EEOC” is used when referring to the adjudicatory authority and the term “Agency” is used when referring to EEOC in its role as the respondent
party. In all cases, the Commission in its adjudicatory capacity operates independently from those offices charged with in -house processing and resolution of discrimination complaints. The Chair
has abstained from participation in this decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for employment at the Agency. On April 10, 2014, the Agency posted a vacancy for an Alternative Dispute Resolution (ADR) Mediator in multiple locations, under vacancy number D14- OFP-1095443-085-
TMD. Complainant contacted a Human Resources Specialist (HRS) and provided his documents to apply for the positions in Baltimore, New York City, and Houston. HRS referred Complainant’s application to the respective selecting officials, noting that Complainant wished to be considered
under the following non-competitive authorities : Schedule A,
3 Veterans Employment
Opportunities Act of 1998 (VEOA), Reinstatement Eligibles, and 30% or more Disabled Veterans. Complainant was not selected for the position in New York City. The Agency moved the Baltimore vacancy to Philadelphia because two ADR Mediators in Philadelphia retired, which created a
greater need to hire mediators in that office . The Agency also moved the Houston vacancy to
Miami bec ause it reassigned an internal ADR Mediator from Miami to Houston. On August 5,
2014, the Agency posted a vacancy for ADR Mediators in Philadelphia and Miami, under vacancy
number D14 -OFP-1183231-132- TMD. Complainant requested that he be considered for the se two
vacancies, and he was not selected .
On October 10, 2014, Complainant filed an equal employment opportunity ( EEO ) complaint
alleging that the Agency discriminated against him on the basis of disability and in reprisal for prior protected EEO activity when :
(1) on August 18, 2014, Complainant was not selected for the GS -0301- 12 ADR Mediator
position advertised under Job Announcement No. D14- OFP-1095443-085- TMD, which
advertised vacant positions located in Baltimore, Maryland; New York, New York; Houston, Texas; and an “unspecified” location, which later was identified as Seattle, Washington;
(2) Complainant was not selected for the GS -0301- 12 ADR Mediator position advertised
under Job Announcement No. D14- OFP-1183231-132- TMD, which advertised vacant
positions located in Miami, Florida, and Philadelphia, Pennsylvania; and
(3) unknown EEO management and Human Resource officials, including HRS,
(a) conspired to manipulate the recruitment and staffing for ADR Mediator positions;
(b) conspired to cancel and move the advertised vacancy in the Houston, Texas, office to the Miami, Florida, office;
3 The “Schedule A” hiring authority is a non- competitive appointment authority used for hiring
applicants with disabilities. See generally 5 C.F.R. § 213.3102(u).
(c) conspired to cancel and move the advertised vacancy in the Baltimore, Maryland, office
to the Philadelphia, Pennsylvania, office; and
(d) failed to follow established procedures for the receipt and administration of applications received from applicants with disabilities.
Complainant also alleged that management officials authorized and administered EEO counseling
designed to intimidate and deter him from filing a formal EEO complaint. Specifically, Complainant alleged that:
(1) the EEO Counselor failed to identify herself or her role when she initial ly contacted
Complainant, causing an unnecessary delay in the start of EEO counseling;
(2) the EEO Counselor initially refused to respond via email to Complainant’s specific inquiries regarding his initial contact;
(3) the EEO Counselor restricted the amount of time available for EEO counseling by not promptly responding to Complainant’s e -mails. It was only when Complainant involved
the EEO Counselor’s supervisor, the Deputy Director of the Office of Equal Opportunity (OEO), that the EEO Counselor understood that Complainant could submit communications in writing;
(4) the EEO Counselor recorded Complainant’s claims and bases incorrectly;
(5) the EEO Counselor conducted an insufficient limited inquiry, closed out EEO counseling prematurely, and did not ask whether Complainant would agree to an extension of the EEO counseling to conduct a sufficient limited inquiry;
(6) the EEO Counselor failed to identify the name and title of any involved management official , or any documents reviewed during EEO counseling;
(7) the EEO Counselor failed to provide Complainant with the specific reasons why he was not selected by the responsible management officials , or the reasons why the positions
were cancelled and moved to another location;
(8) the EEO Counselor failed to identify any resolving official , or any attempts at resolution
during the counseling; and
(9) the Agency failed to fram e his allegations accurately in the Notice of Acceptance.
The Agency informed Complainant that it would process the claims concerning the processing of
his complaint pursuant to Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD -110) (Aug ust 3, 2015).
Complainant requested a final decision from t he Agency, whic h found that Complainant did not
establish that it discriminated against him as alleged. The Agency found that Complainant did not
establish prima facie cases of discrimination based on disability or reprisal. The Agency found that
management officials nonetheless had articulated legitimate, nondiscriminatory reasons for its
actions , and that Complainant did not show that the articulated reasons were a pretext for
discrimination.
The Agency also found that there was no merit to Complainant’s claim of improper complaint -
processing. For example, the Agency stated that the EEO Counselor “took all reasonable measures
to ensure that his complaint was timely filed,” and that her failure to identify hers elf as an EEO
Counselor in her initial email to Complainant did not delay or negatively affect the counselling .
The Agency also found that OEO cured any harm that Complainant may have suffered. The
Agency concluded that Complainant did not identify any har m that he suffered as a result of the
Agency’s actions regarding the processing of his complaint , and he did not show that the Agency’s
actions affected the outcome of the complaint.
Complainant appealed the Agency’s final decision , but he did not submit any arguments in support
of his appeal. The Commission issued its decision in Jacinto Q. v. Equal Employment Opportunity
Commission , EEOC Appeal No. 0120162639 (Nov. 27, 2019) . As an initial matter, the
Commission found that the record d id not establish that the Agency administered EEO counseling
in a manner designed to intimidate or deter Complainant from filing a formal EEO complaint, or that the Agency processed Complainant’s complaint improperly.
Regarding the non -selections, the Commission assume d, for purposes of analysis only and without
so finding, that Complainant established prima facie cases of discrimination based on disability and reprisal. The Commission then found that the Agency articulated legitimate,
nondiscriminatory reas ons for its actions . For example, two selecting official s stated that they only
considered candidates from the Best Qualified and Merit Promotion certificates because those certificates had the largest number of best -qualified candidates.
The Commission determined that Complainant ha d not shown that the articulated reasons were a
pretext for discrimination. Specifically, the Commission found that Complainant did not refute the
Agency’s explanation that they considered candidates from the Best Qualified and Merit
Promotion certificates because of the number of qualified candidates on those certificates. Further, the Commission found that Complainant did not present evidence that he was more qualified for
the positions than those selected, all of whom had strong mediation backgrounds and experience
working with the Agency’s mediation program. In addition, the Commission found that Complainant ha d not shown that a discriminatory reason
more likely than not mot ivated the Agency’s actions. The Commission noted that Complainant did
not offer any evidence to support his allegation that the Agency cancelled the Baltimore and
Houston vacancies to prevent him from being selected for the positions, nor was there eviden ce
that the Agency manipulated the recruitment and staffing process to prevent Complainant’s consideration and selection.
The Commission determined that Complainant’s unsupported speculation was insufficient to
establish pretext and concluded that Complainant did not establish that the Agency discriminated
against him based on disability or in reprisal for protected EEO activity, when it did not select him
for any of the ADR Mediator positions. Complainant filed the instant req uest for reconsideration and submitted a brief in support of his
request. The Agency did not submit a response to Complainant’s request for reconsideration.
CONTENTIONS ON REQUEST FOR RECONSIDERATION
Complainant argues that the appellate decision “misconstrued” material facts . Complainant notes ,
for example, that the Commission determined that selecting officials used only competitive
certificates because they provided a larger number of qualified candidates . Complainant argues
that there is “no testimonial or documentary” evidence that supports this finding. Complainant also argues that the Commission “ did not rely on the appropriate law.” Specifically, Complainant states
that there were “many weaknesses, implausibility, inconsistencies, incoherencies, or
contradictions” in the Agency’s proffered legitimate, nondiscriminatory reasons that a reasonable fact-finder would rationally find them unworthy of credence. Complainant states that the Agency
did not present any evidence to support its “subjective and unsupported” claim that the workload
increased to justify moving the Baltimore vacancy to Philade lphia. Complainant also argues that
management officials made contradictory statements regarding who cancelled the Baltimore
vacancy.
Complainant argues that a “new decision” may have a substantial impact on Agency policies,
procedures, and operations because it will likely result in a requirement to publish the Agency’s
written internal procedures for processing EEO complaints. For example, Complainant states that the Commission does not provide written guidance for complainants to request a copy of the same complaint file that is in the Commission’s internal database. In addition, Complainant state s that
the Commission should publish a public notice advising complainants of a “virus,” which
automatically deletes the complaint file in the portal when an appellate decision is issued.
Complainant asserts that the appellate decision erred in finding no merit to his allegation of improper processing of his complaint , and that the Agency ’s intentional hostility , and refusal to
adequately process his complaint, was t o intimidate him into dropping his complaint. Complainant
states that he was not advised of his right to an “inter -agen cy adjudicator” and that when he
requested one, his request was denied. Complainant notes that the Commission has remanded
complaints when complainants were not provided with appropriate rights.
4 There is no evidence of a computer “virus.” The Commission informed Complainant that a
“design flaw” prevented access to his closed appeal in the portal, but once Complainant’s request for reconsideration was opened, the underlying documents were copied to the new request file.
Complainant also alleges a conflict of interest, demonstra ted by “corrupt behavior .” Complainant
states that the Commission designed its internal complaint proces s to “secretly manipulate the
record to cover up discrimination and retaliation .” Complainant asserts that the Agency provided
the Commission with a document that was “bookmarked and word searchable,” while he was given
a “collection of unnumbered and unorganized documents ,” and when he requested access to the
same complaint file used by the Commission, he did not get a response. Complainant states tha t
his correspondences with an anonymous email mailbox from an “Attorney of the Day” was done
to prevent him from being able to refer to a specific Commission employee who may have provided
misinformation. Complainant requests that the Commission vacate the prior appellate decision and remand his
complaint for a supplemental investigation and further adjudication. In addition, Complainant asks
that he be provided with new notices of his right to elect : (1) another final decision ; (2) a hearing
before a contract EEOC administrative judge or inter -agency adjudicator ; or (3) file a civil
complaint.
ANALYSIS AND FINDINGS
As an initial matter, we note that a request for reconsideration is not a second appeal to the Commission. See, e.g., Jules H. v. Dep’t of Homeland Sec., EEOC Appeal No. 0520160173 (Apr.
22, 2016). Here, we find that Complainant could have raised all the arguments he raises in this request when he filed the initial appeal. Complainant raised no arguments during the ini tial appeal.
A request for reconsideration is not appropriate as a replacement for arguments neglected to be made in the initial appeal. Nevertheless, although not required, we will consider Complainant’s
arguments which could have been raised during the i nitial appeal.
Conflict of Interest Conflicts of interest can arise when the responsible management official s, alleged to have engaged
in discriminatory conduct , are the Agency head ; a member of the immediate staff of the Agency
head ; within the Agency’s EEO office; or occupy a high -level position of influence in the Agency .
See EEO
MD-110 at Chap. 1, § IV.B. Complainant argues that there is a conflict of interest due to
a “secret internal process” that manipulates the process to “cover up discrimination.” However,
we find that Complainant’s allegations do not raise a conflict of interest. In this case, the
responsible management officials are those who deci ded not to hire Complainant for the various
ADR Mediator positions, and the re is no evidence that they we re staff members who work for the
Agency head, or that they had influence over those who work in OEO . As such, we find that there
is no conflict of interest in Complainant’s case.
5 We note that Complainant’s right to file a civil action is included at the end of this decision.
Complaint Processing
When a complainant raises allegations of dissatisfaction regarding the processing of his or her pending complaint, the Agency official responsible for the quality of complaints processing must add a record of the complainant’s concerns, and any actions the Agency took to resolve the
concerns, to the complaint file maintained on the underlying complaint. See EEO MD -110 at Chap .
5, § IV.A.12 and § IV.D. Complainant notes his dissatisfaction with the processing of his EEO
complaint. Specifically , Complainant states that he received anonymous emails from an “Attorney
of the Day,” which prevent ed him from naming a Commission employee who provided
misinformation; was provided with a collection of unnumbered and unorganized documents that
differed from what OEO provided to OFO ; and had to use a system which contained a “computer
bug.” However, we find that Complainant has not shown that he was provided any misinformation
by an “ Attorney of the Day ”; that his documents differed from those considered by OFO ; or that
any “computer bug” affected the processing of his EEO complaint.
Complainant also argues that he was not advised of his right to an “inter -agency adjudicator ,” and
that when he requested this option, it was denied. However, Complainant has not provided any evidence showing that he was offered, or denied, an option for an “inter -agency adjudicator.”
Also, we find no such “right” or need for another agency to be involved in processing the instant complaint. Further, Complainant only makes unsupported assertions of improper behavior during
the processing of his EEO complaint. | Jacinto Q .,1
Complainant,
v.
Janet Dhillon,2
Chair,
Equal Employment Opportunity Commission,
Agency.
Request No. 2020001273
Appeal No. 0120162639
Agency No. 2014-0041
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120162639 (November 27, 2019).
EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider
any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). For the
reasons that follow, the Commission DENIES Complainant’s request for reconsideration for
failure to meet the regulatory criteria.
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
2 As a procedural matter, we note that the Equal Employment Opportunity Commission (EEOC)
is both the respondent agency and the adjudicatory authority issuing this decision. For the purposes of this decision, the term “Commission” or “EEOC” is used when referring to the adjudicatory authority and the term “Agency” is used when referring to EEOC in its role as the respondent
party. In all cases, the Commission in its adjudicatory capacity operates independently from those offices charged with in -house processing and resolution of discrimination complaints. The Chair
has abstained from participation in this decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for employment at the Agency. On April 10, 2014, the Agency posted a vacancy for an Alternative Dispute Resolution (ADR) Mediator in multiple locations, under vacancy number D14- OFP-1095443-085-
TMD. Complainant contacted a Human Resources Specialist (HRS) and provided his documents to apply for the positions in Baltimore, New York City, and Houston. HRS referred Complainant’s application to the respective selecting officials, noting that Complainant wished to be considered
under the following non-competitive authorities : Schedule A,
3 Veterans Employment
Opportunities Act of 1998 (VEOA), Reinstatement Eligibles, and 30% or more Disabled Veterans. Complainant was not selected for the position in New York City. The Agency moved the Baltimore vacancy to Philadelphia because two ADR Mediators in Philadelphia retired, which created a
greater need to hire mediators in that office . The Agency also moved the Houston vacancy to
Miami bec ause it reassigned an internal ADR Mediator from Miami to Houston. On August 5,
2014, the Agency posted a vacancy for ADR Mediators in Philadelphia and Miami, under vacancy
number D14 -OFP-1183231-132- TMD. Complainant requested that he be considered for the se two
vacancies, and he was not selected .
On October 10, 2014, Complainant filed an equal employment opportunity ( EEO ) complaint
alleging that the Agency discriminated against him on the basis of disability and in reprisal for prior protected EEO activity when :
(1) on August 18, 2014, Complainant was not selected for the GS -0301- 12 ADR Mediator
position advertised under Job Announcement No. D14- OFP-1095443-085- TMD, which
advertised vacant positions located in Baltimore, Maryland; New York, New York; Houston, Texas; and an “unspecified” location, which later was identified as Seattle, Washington;
(2) Complainant was not selected for the GS -0301- 12 ADR Mediator position advertised
under Job Announcement No. D14- OFP-1183231-132- TMD, which advertised vacant
positions located in Miami, Florida, and Philadelphia, Pennsylvania; and
(3) unknown EEO management and Human Resource officials, including HRS,
(a) conspired to manipulate the recruitment and staffing for ADR Mediator positions;
(b) conspired to cancel and move the advertised vacancy in the Houston, Texas, office to the Miami, Florida, office;
3 The “Schedule A” hiring authority is a non- competitive appointment authority used for hiring
applicants with disabilities. See generally 5 C.F.R. § 213.3102(u).
(c) conspired to cancel and move the advertised vacancy in the Baltimore, Maryland, office
to the Philadelphia, Pennsylvania, office; and
(d) failed to follow established procedures for the receipt and administration of applications received from applicants with disabilities.
Complainant also alleged that management officials authorized and administered EEO counseling
designed to intimidate and deter him from filing a formal EEO complaint. Specifically, Complainant alleged that:
(1) the EEO Counselor failed to identify herself or her role when she initial ly contacted
Complainant, causing an unnecessary delay in the start of EEO counseling;
(2) the EEO Counselor initially refused to respond via email to Complainant’s specific inquiries regarding his initial contact;
(3) the EEO Counselor restricted the amount of time available for EEO counseling by not promptly responding to Complainant’s e -mails. It was only when Complainant involved
the EEO Counselor’s supervisor, the Deputy Director of the Office of Equal Opportunity (OEO), that the EEO Counselor understood that Complainant could submit communications in writing;
(4) the EEO Counselor recorded Complainant’s claims and bases incorrectly;
(5) the EEO Counselor conducted an insufficient limited inquiry, closed out EEO counseling prematurely, and did not ask whether Complainant would agree to an extension of the EEO counseling to conduct a sufficient limited inquiry;
(6) the EEO Counselor failed to identify the name and title of any involved management official , or any documents reviewed during EEO counseling;
(7) the EEO Counselor failed to provide Complainant with the specific reasons why he was not selected by the responsible management officials , or the reasons why the positions
were cancelled and moved to another location;
(8) the EEO Counselor failed to identify any resolving official , or any attempts at resolution
during the counseling; and
(9) the Agency failed to fram e his allegations accurately in the Notice of Acceptance.
The Agency informed Complainant that it would process the claims concerning the processing of
his complaint pursuant to Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD -110) (Aug ust 3, 2015).
Complainant requested a final decision from t he Agency, whic h found that Complainant did not
establish that it discriminated against him as alleged. The Agency found that Complainant did not
establish prima facie cases of discrimination based on disability or reprisal. The Agency found that
management officials nonetheless had articulated legitimate, nondiscriminatory reasons for its
actions , and that Complainant did not show that the articulated reasons were a pretext for
discrimination.
The Agency also found that there was no merit to Complainant’s claim of improper complaint -
processing. For example, the Agency stated that the EEO Counselor “took all reasonable measures
to ensure that his complaint was timely filed,” and that her failure to identify hers elf as an EEO
Counselor in her initial email to Complainant did not delay or negatively affect the counselling .
The Agency also found that OEO cured any harm that Complainant may have suffered. The
Agency concluded that Complainant did not identify any har m that he suffered as a result of the
Agency’s actions regarding the processing of his complaint , and he did not show that the Agency’s
actions affected the outcome of the complaint.
Complainant appealed the Agency’s final decision , but he did not submit any arguments in support
of his appeal. The Commission issued its decision in Jacinto Q. v. Equal Employment Opportunity
Commission , EEOC Appeal No. 0120162639 (Nov. 27, 2019) . As an initial matter, the
Commission found that the record d id not establish that the Agency administered EEO counseling
in a manner designed to intimidate or deter Complainant from filing a formal EEO complaint, or that the Agency processed Complainant’s complaint improperly.
Regarding the non -selections, the Commission assume d, for purposes of analysis only and without
so finding, that Complainant established prima facie cases of discrimination based on disability and reprisal. The Commission then found that the Agency articulated legitimate,
nondiscriminatory reas ons for its actions . For example, two selecting official s stated that they only
considered candidates from the Best Qualified and Merit Promotion certificates because those certificates had the largest number of best -qualified candidates.
The Commission determined that Complainant ha d not shown that the articulated reasons were a
pretext for discrimination. Specifically, the Commission found that Complainant did not refute the
Agency’s explanation that they considered candidates from the Best Qualified and Merit
Promotion certificates because of the number of qualified candidates on those certificates. Further, the Commission found that Complainant did not present evidence that he was more qualified for
the positions than those selected, all of whom had strong mediation backgrounds and experience
working with the Agency’s mediation program. In addition, the Commission found that Complainant ha d not shown that a discriminatory reason
more likely than not mot ivated the Agency’s actions. The Commission noted that Complainant did
not offer any evidence to support his allegation that the Agency cancelled the Baltimore and
Houston vacancies to prevent him from being selected for the positions, nor was there eviden ce
that the Agency manipulated the recruitment and staffing process to prevent Complainant’s consideration and selection.
The Commission determined that Complainant’s unsupported speculation was insufficient to
establish pretext and concluded that Complainant did not establish that the Agency discriminated
against him based on disability or in reprisal for protected EEO activity, when it did not select him
for any of the ADR Mediator positions. Complainant filed the instant req uest for reconsideration and submitted a brief in support of his
request. The Agency did not submit a response to Complainant’s request for reconsideration.
CONTENTIONS ON REQUEST FOR RECONSIDERATION
Complainant argues that the appellate decision “misconstrued” material facts . Complainant notes ,
for example, that the Commission determined that selecting officials used only competitive
certificates because they provided a larger number of qualified candidates . Complainant argues
that there is “no testimonial or documentary” evidence that supports this finding. Complainant also argues that the Commission “ did not rely on the appropriate law.” Specifically, Complainant states
that there were “many weaknesses, implausibility, inconsistencies, incoherencies, or
contradictions” in the Agency’s proffered legitimate, nondiscriminatory reasons that a reasonable fact-finder would rationally find them unworthy of credence. Complainant states that the Agency
did not present any evidence to support its “subjective and unsupported” claim that the workload
increased to justify moving the Baltimore vacancy to Philade lphia. Complainant also argues that
management officials made contradictory statements regarding who cancelled the Baltimore
vacancy.
Complainant argues that a “new decision” may have a substantial impact on Agency policies,
procedures, and operations because it will likely result in a requirement to publish the Agency’s
written internal procedures for processing EEO complaints. For example, Complainant states that the Commission does not provide written guidance for complainants to request a copy of the same complaint file that is in the Commission’s internal database. In addition, Complainant state s that
the Commission should publish a public notice advising complainants of a “virus,” which
automatically deletes the complaint file in the portal when an appellate decision is issued.
Complainant asserts that the appellate decision erred in finding no merit to his allegation of improper processing of his complaint , and that the Agency ’s intentional hostility , and refusal to
adequately process his complaint, was t o intimidate him into dropping his complaint. Complainant
states that he was not advised of his right to an “inter -agen cy adjudicator” and that when he
requested one, his request was denied. Complainant notes that the Commission has remanded
complaints when complainants were not provided with appropriate rights.
4 There is no evidence of a computer “virus.” The Commission informed Complainant that a
“design flaw” prevented access to his closed appeal in the portal, but once Complainant’s request for reconsideration was opened, the underlying documents were copied to the new request file.
Complainant also alleges a conflict of interest, demonstra ted by “corrupt behavior .” Complainant
states that the Commission designed its internal complaint proces s to “secretly manipulate the
record to cover up discrimination and retaliation .” Complainant asserts that the Agency provided
the Commission with a document that was “bookmarked and word searchable,” while he was given
a “collection of unnumbered and unorganized documents ,” and when he requested access to the
same complaint file used by the Commission, he did not get a response. Complainant states tha t
his correspondences with an anonymous email mailbox from an “Attorney of the Day” was done
to prevent him from being able to refer to a specific Commission employee who may have provided
misinformation. Complainant requests that the Commission vacate the prior appellate decision and remand his
complaint for a supplemental investigation and further adjudication. In addition, Complainant asks
that he be provided with new notices of his right to elect : (1) another final decision ; (2) a hearing
before a contract EEOC administrative judge or inter -agency adjudicator ; or (3) file a civil
complaint.
ANALYSIS AND FINDINGS
As an initial matter, we note that a request for reconsideration is not a second appeal to the Commission. See, e.g., Jules H. v. Dep’t of Homeland Sec., EEOC Appeal No. 0520160173 (Apr.
22, 2016). Here, we find that Complainant could have raised all the arguments he raises in this request when he filed the initial appeal. Complainant raised no arguments during the ini tial appeal.
A request for reconsideration is not appropriate as a replacement for arguments neglected to be made in the initial appeal. Nevertheless, although not required, we will consider Complainant’s
arguments which could have been raised during the i nitial appeal.
Conflict of Interest Conflicts of interest can arise when the responsible management official s, alleged to have engaged
in discriminatory conduct , are the Agency head ; a member of the immediate staff of the Agency
head ; within the Agency’s EEO office; or occupy a high -level position of influence in the Agency .
See EEO
MD-110 at Chap. 1, § IV.B. Complainant argues that there is a conflict of interest due to
a “secret internal process” that manipulates the process to “cover up discrimination.” However,
we find that Complainant’s allegations do not raise a conflict of interest. In this case, the
responsible management officials are those who deci ded not to hire Complainant for the various
ADR Mediator positions, and the re is no evidence that they we re staff members who work for the
Agency head, or that they had influence over those who work in OEO . As such, we find that there
is no conflict of interest in Complainant’s case.
5 We note that Complainant’s right to file a civil action is included at the end of this decision.
Complaint Processing
When a complainant raises allegations of dissatisfaction regarding the processing of his or her pending complaint, the Agency official responsible for the quality of complaints processing must add a record of the complainant’s concerns, and any actions the Agency took to resolve the
concerns, to the complaint file maintained on the underlying complaint. See EEO MD -110 at Chap .
5, § IV.A.12 and § IV.D. Complainant notes his dissatisfaction with the processing of his EEO
complaint. Specifically , Complainant states that he received anonymous emails from an “Attorney
of the Day,” which prevent ed him from naming a Commission employee who provided
misinformation; was provided with a collection of unnumbered and unorganized documents that
differed from what OEO provided to OFO ; and had to use a system which contained a “computer
bug.” However, we find that Complainant has not shown that he was provided any misinformation
by an “ Attorney of the Day ”; that his documents differed from those considered by OFO ; or that
any “computer bug” affected the processing of his EEO complaint.
Complainant also argues that he was not advised of his right to an “inter -agency adjudicator ,” and
that when he requested this option, it was denied. However, Complainant has not provided any evidence showing that he was offered, or denied, an option for an “inter -agency adjudicator.”
Also, we find no such “right” or need for another agency to be involved in processing the instant complaint. Further, Complainant only makes unsupported assertions of improper behavior during
the processing of his EEO complaint. Accordingly, we find that Complainant has not shown that his complaint was improperly processed.
Substantial Impact Complainant argues a possible substant ial impact on the policies, practices, or operations of the
Agency because a “new decision” will likely result in a requirement to publish the Agency’s
written internal procedures. However, we find that Complainant has not shown any improprieties
in the processing of his complaint, and he has not shown a need to change the Agency’s policies,
practices, or operations.
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology, Inc. , 425 F. Supp. 318, 324 (D. Mass.), aff’d , 545 F.2d 222 (1st Cir. 1976).
For Complainant to prevail, he must first establish a prima facie case of discrimin ation by
presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. Furnco Constr.
Corp. v. Waters, 438 U.S. 567, 577 (1978); McDonnell Douglas , 411 U.S. at 802 n.13. Once
Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981).
If the Agency is successful, the burden reverts back to Complainant to demonstrate by a
preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507-08 (1993); U.S. Postal Service v.
Aikens, 460 U.S. 711, 715-716 (1983).
Assuming, arguendo, that Complainant established a prima facie case of discrimination based on disability and in reprisal for protected EEO activity, the previous decision correctly found that the Agency articulated legitimate, nondiscriminatory reasons for not selecting Complainant. Management officials for the New York City and Miami vacancies stated that they only considered
candidates from the competitive certificates due to the large number of qualified candidates on
those certi ficates. The Philadelphia selecting official (PSO) stated that he chose the selectee (S1)
because he was an internal candidate with a reputation as an “excellent worker,” with experience
in negotiation and mediation and a strong EEO background.
Further, the previous decision correctly found that Complainant did not show that the proffered
reason s were pretext for discrimination. In a non- selection case, pretext may be found where the
complainant's qualifications are plainly superior to the qualifications of the selectee. See Wasser
v. Dep't of Labor, EEOC Request No. 05940058 (Nov. 2, 1995); Bauer v. Bailar , 647 F.2d 1037,
1048 (10th Cir. 1981). In his request for reconsideration, Complainant argues that he was more qualified than S1 because he ha d more than 14 years of relevant EEO -related experience, while S1
only had five years of “ EEO training .” However, S1’s resume shows that he had five years of
experience as an EEO Investigator, and not “training ,” and as noted above, S1 had experience in
negotiation and mediation. In addition, we note that the Commission has found that number of
years of experience, alone, is insufficient to establish that a candidate's qualifications are plainly
superior. See Kopkas v. U.S. Postal Serv., EEOC Appeal No. 0120112758 (Oct. 13, 2011). As
such, Complainant has not demonstrated that he was a plainly superior candidate, as compared to S1.
A complainant can also establish pretext in two ways: “(1) indirectly, by showing that the
employer's proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination more li kely
motivated the employer.” Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th
Cir. 2000) (internal quotation marks omitted); see also McDonnell Douglas, 411 U.S. at 804-05.
Here, Complainant argues that there are “many weaknesses, implausibility, inconsistencies,
incoherencies, or contradictions” in the management officials’ responses.
For example, Complainant argues that it is “very suspicious” that the selecting official for the
Miami vacancy did not consider the applicants on the non- competitive certificates. However, the
Commission has found that , although federal agencies are authorized to use the Schedule A hiring
authority when considering people with disabilities, the use of this authority is not mandatory.
In addition, while Executive Order 13548 provides that agencies shall generally increase utilization
of Schedule A hiring authority, the Executive Order does not mandate the use of Schedule A
authority in any particular hiring decision. See Maricruz Y. v. Dep’t of Homeland S ecurity , EEOC
Appeal No. 2019000976 (Dec. 10, 2019) ; Complainant v. Dep't of Veterans Affairs , EEOC Appeal
No. 0120131609 (Dec . 16, 2014); Hein v. National Archives and Records Administration, EEOC
Request No. 0520130314 (Aug. 5, 2013) . As such, we do not agree with Complainant that the
Agency’s decision to only consider the competitive certificates was “very suspicious.”
Complainant also argues that pretext is shown because the Agency’s articulated reason for moving
the Baltimore vacancy to Philad elphia is not supported by any evidence in the record. However,
the record contains an affidavit from the Philadelphia District Resource Manager (PDRM) , who
stated that the Philadelphia office was short two mediators due to retirements, and it had a greate r
need for mediators due to the volume of work. In addition, Complainant argues that there are
inconsistencies in the record because PDRM stated that she returned the certificates “unused,”6
while PSO stated that he made a selection from the merit certificate; and there are conflicting
statements regarding who made the decision to move the Baltimore vacancy. Complainant also
argues that while PSO stated that he did not have enough information to determine if Complainant
was qualified or disabled, Complainant was referred under Schedule A, and PSO was aware that
Complainant was disabled and qualified. However, these purported inconsistencies do not prove
that PSO’s reasons for selecting S1 are not worthy of belief, and they are insufficient to establish
pretext for discrimination .
We find that the Commission’s prior appellate decision did not contain a clearly erroneous
interpretation of material fact or law, and that it correctly found that Complainant did not establish
that the Agency discriminated against him based on his disability or in reprisal for protected EEO activity , when it did not select him for a position as an ADR Mediator.
CONCLUSION
After reviewing the previous decision and the entire record, the Commission finds that the re quest
fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120162639 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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.
6 We note that PDRM stated that she returned the certificates in USAJOBS, and that she returned
the “manual” certificates unused.
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 wor k.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
/S/ Bernadette B. Wilson Bernadette B. Wilson’s signature
Bernadette B. Wilson
Executive Officer
Executive Secretariat
October 5, 2020
Date | [
"Jacinto Q. v. Equal Employment Opportunity Commission , EEOC Appeal No. 0120162639 (Nov. 27, 2019)",
"Jules H. v. Dep’t of Homeland Sec., EEOC Appeal No. 0520160173 (Apr. 22, 2016)",
"Wasser v. Dep't of Labor, EEOC Request No. 05940058 (Nov. 2, 1995)",
"Kopkas v. U.S. Postal Serv., EEOC Appeal No. 0120112758... | [
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260 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120091061.txt | 0120091061.txt | TXT | text/plain | 9,916 | Richard S. Smith, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency. | December 16, 2008 | Appeal Number: 0120091061
Complaint Allegations:
In his complaint, complainant alleged that he was subjected to discrimination on the bases of race (Caucasian), age (47 years old at time of incidents), and reprisal for prior protected EEO activity under a statute that was unspecified in the record when: 1. On October 10, 2007, a manager (RMO1) misled complainant into believing he did not have to attend NACVA CENTRA training; 2. On October 10, 2007 RMO1 further denied complainants request to attend business valuation training; 3. On November 27, 2007, another manager (RMO2) yelled at and threatened Complainant; 4. Between November 27 and December 11, 2007, complainant was transferred to another team; 5. On December 11, 2007, RMO2 issued complainant a letter of admonishment; and 6. On June 19, 2008, complainant received an unjustifiably low annual performance appraisal rating.
Legal Analysis:
The Commission,
however, finds that by that time a valid election had already been made.
It is well-settled that withdrawing a grievance does not abrogate its
effect for the purposes of an election, and will not entitle complainant
to then file an EEO complaint. See Marsh v. Department of the Treasury,
EEOC Request No. 05910383 (August 12, 1991). As the record indicates
that complainant elected to pursue claims 1, 2, 3, 5 and 6 within the
grievance procedure, we find that the agency properly dismissed those
claims pursuant to 29 C.F.R. § 1614.107(a)(4).
As regards claim 4, which was not raised in a grievance, the record shows
that the alleged discriminatory incident occurred no later than December
11, 2007. Complainant, however, did not contact an EEO counselor until
July 17, 2008, which is beyond the 45-day regulatory limit. Complainant,
on appeal, has presented no persuasive arguments or evidence warranting
an extension of the time limit for initiating EEO Counselor contact.
Final Decision:
Accordingly, the agency's final decision dismissing complainant's complaint is affirmed. | Richard S. Smith,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120091061
Agency No. IRS080808F
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 16, 2008, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq. In his complaint, complainant alleged that he
was subjected to discrimination on the bases of race (Caucasian), age
(47 years old at time of incidents), and reprisal for prior protected
EEO activity under a statute that was unspecified in the record when:
1. On October 10, 2007, a manager (RMO1) misled complainant into believing
he did not have to attend NACVA CENTRA training;
2. On October 10, 2007 RMO1 further denied complainants request to attend
business valuation training;
3. On November 27, 2007, another manager (RMO2) yelled at and threatened
Complainant;
4. Between November 27 and December 11, 2007, complainant was transferred
to another team;
5. On December 11, 2007, RMO2 issued complainant a letter of admonishment;
and
6. On June 19, 2008, complainant received an unjustifiably low annual
performance appraisal rating.
The agency dismissed claim 4 for untimely EEO Counselor contact, and
the remaining claims on the grounds that complainant had already filed
grievances on the same claims.
The regulation set forth at 29 C.F.R. § 1614.107(a)(4) provides that an
agency may dismiss a complaint where the complainant has raised the matter
in a negotiated grievance procedure that permits claims of discrimination.
In the instant case, the record shows that complainant filed a grievance
concerning the matters identified in claims 1, 2, 3 and 5 on December
13, 2007, and a second grievance, concerning the matter identified in
claim 6, on July 3, 2008. Complainant did not file his EEO complaint
until September 26, 2008. Additionally, the record shows that under
the terms of the agency's union agreement, employees have the right to
raise matters of alleged discrimination under the statutory procedure
or the negotiated grievance procedure, but not both.
Complainant argues that he was misled by agency EEO officials into
believing that he could file under both procedures, and that he could
still file an EEO claim after filing a grievance on the same matter.
Complainant states that he met with two agency EEO officials (ERO1 and
ERO2) on February 13, 2008 "to discuss whether I actually could begin
the EEO process after receiving management's first level response to
my grievance. At that meeting they stated I could proceed with the EEO
process after I received management's last response to my grievance."
Complainant's Appellate Brief. Complainant further states that he
followed that up with emails to ERO's 1 & 2, dated February 14 and April
30, 2008, in which he stated he was pursuing the grievance process and
intended to next pursue the EEO process. See id. Complainant argues
that had he been informed that he could not pursue both processes,
he would have withdrawn from the grievance process and immediately
initiated the EEO process.
The agency produced emails from ERO1 who stated that ERO2 no longer worked
at the agency and who denied that either she or ERO2 told complainant
that he could pursue both processes. The agency found that complainant's
claim that he was misinformed was not persuasive but that, even assuming
for the sake of argument that he had been misled, he filed his first
grievance, covering the matters raised in claims 1, 2, 3, and 5, on
December 13, 2007, while any misinformation, according to complainant,
occurred on or about February 13, 2008 and hence could not have induced
him to select the grievance process instead of the EEO process.
Following a review of the record we find that complainant has not met
his burden of establishing that he was misled by agency officials
into selecting the grievance process instead of the EEO process.
We note that complainant has not produced any copies of emails or other
communication from any agency official informing him that that he could
pursue both processes. We further note that the agency's Collective
Bargaining Agreement states that employees may not choose both the EEO
and the grievance process. In addition the record shows that EEO posters
were posted at complainant's work facility notifying employees of the
deadlines for initiating the EEO process. Finally, we note that the
Commission has consistently held that the filing of a grievance does
not toll the running of the time limit to contact an EEO Counselor.
See Miller v. United States Postal Service, EEOC Request No. 05880835
(February 2, 1989).
Complainant states that had he not been misled, he would have withdrawn
his first grievance before he filed his formal complaint. The Commission,
however, finds that by that time a valid election had already been made.
It is well-settled that withdrawing a grievance does not abrogate its
effect for the purposes of an election, and will not entitle complainant
to then file an EEO complaint. See Marsh v. Department of the Treasury,
EEOC Request No. 05910383 (August 12, 1991). As the record indicates
that complainant elected to pursue claims 1, 2, 3, 5 and 6 within the
grievance procedure, we find that the agency properly dismissed those
claims pursuant to 29 C.F.R. § 1614.107(a)(4).
As regards claim 4, which was not raised in a grievance, the record shows
that the alleged discriminatory incident occurred no later than December
11, 2007. Complainant, however, did not contact an EEO counselor until
July 17, 2008, which is beyond the 45-day regulatory limit. Complainant,
on appeal, has presented no persuasive arguments or evidence warranting
an extension of the time limit for initiating EEO Counselor contact.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
June 3, 2009
__________________
Date
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"29 C.F.R. § 1614.604(c)",
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261 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01971958.txt | 01971958.txt | TXT | text/plain | 9,828 | November 24, 1998 | Appeal Number: 01971958
Case Facts:
Appellant filed the instant appeal from the agency's December 4, 1996
decision dismissing appellant's complaint for failure to timely contact
an EEO Counselor.
Legal Analysis:
EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides
that an aggrieved person must contact an EEO Counselor within 45 days
of the matter alleged to be discriminatory.
The complaint concerns allegedly discriminatory appraisals issued
between September 1989 and July 1994 which led to appellant being denied
a competitive promotion. The complaint is based on retaliation and
age discrimination. The Commission finds that appellant should have
reasonably suspected discrimination concerning allegations 1 (age) and
2 (retaliation) in 1994. The agency found and the record shows that
appellant contacted an EEO Counselor on August 13, 1996. It is this
August 13, 1996 contact which led to the instant complaint.
Appellant argues that he contacted an EEO Counselor in April 1994 and was
misled by the EEO Counselor. Appellant argues that the EEO Counselor,
in 1994, informed appellant that appellant could attempt to resolve
the matter with his supervisor or challenge his failure to receive
a noncompetitive promotion with the Office of Personnel Management and
then, if those actions failed, appellant could return to the EEO process.
The agency has not addressed in the December 4, 1996 decision or on
appeal appellant's argument that he contacted an EEO Counselor in April
1994 and was misled by the EEO Counselor. The agency has not submitted an
affidavit from the 1994 EEO Counselor addressing appellant's claim that he
was misled by the EEO Counselor. The Commission shall remand the matter
so the agency can place into the record an affidavit from the 1994 EEO
Counselor and all relevant notes from the 1994 EEO Counselor addressing
the issue of whether appellant timely contacted an EEO Counselor.
The agency's decision dismissing the complaint is VACATED and we REMAND
the complaint to the agency for further processing in accordance with
this decision and applicable regulations.
ORDER
The agency shall supplement the record with:
1. An affidavit from the 1994 EEO Counselor addressing whether appellant
attempted to raise the matters at issue in the instant complaint in
1994 and addressing whether appellant was informed he could attempt to
resolve the matter outside of the EEO process and then later return to
the EEO process
2. All relevant notes from the 1994 EEO Counselor addressing appellant's
contact of an EEO Counselor in 1994.
The agency shall redetermine whether appellant timely contacted an EEO
Counselor. Within 30 days of the date this decision becomes final the
agency shall either issue a letter to appellant accepting the complaint
for investigation or issue a new decision to appellant dismissing the
complaint. A copy of the letter accepting the complaint or a copy of
the new decision dismissing the complaint must be sent to the Compliance
Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. §1614.503 (a). The appellant 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. §§ 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. §§ 1614.408 and 1614.409. 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© (Supp. V 1993).
If the appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. §1614.410. | Robert J. Zaytsow v. Department of the Air Force
01971958
November 24, 1998
Robert J. Zaytsow, )
Appellant, )
)
v. ) Appeal No. 01971958
) Agency No. AL900970181
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
_________________________________)
DECISION
Appellant filed the instant appeal from the agency's December 4, 1996
decision dismissing appellant's complaint for failure to timely contact
an EEO Counselor. EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides
that an aggrieved person must contact an EEO Counselor within 45 days
of the matter alleged to be discriminatory.
The complaint concerns allegedly discriminatory appraisals issued
between September 1989 and July 1994 which led to appellant being denied
a competitive promotion. The complaint is based on retaliation and
age discrimination. The Commission finds that appellant should have
reasonably suspected discrimination concerning allegations 1 (age) and
2 (retaliation) in 1994. The agency found and the record shows that
appellant contacted an EEO Counselor on August 13, 1996. It is this
August 13, 1996 contact which led to the instant complaint.
Appellant argues that he contacted an EEO Counselor in April 1994 and was
misled by the EEO Counselor. Appellant argues that the EEO Counselor,
in 1994, informed appellant that appellant could attempt to resolve
the matter with his supervisor or challenge his failure to receive
a noncompetitive promotion with the Office of Personnel Management and
then, if those actions failed, appellant could return to the EEO process.
The agency has not addressed in the December 4, 1996 decision or on
appeal appellant's argument that he contacted an EEO Counselor in April
1994 and was misled by the EEO Counselor. The agency has not submitted an
affidavit from the 1994 EEO Counselor addressing appellant's claim that he
was misled by the EEO Counselor. The Commission shall remand the matter
so the agency can place into the record an affidavit from the 1994 EEO
Counselor and all relevant notes from the 1994 EEO Counselor addressing
the issue of whether appellant timely contacted an EEO Counselor.
The agency's decision dismissing the complaint is VACATED and we REMAND
the complaint to the agency for further processing in accordance with
this decision and applicable regulations.
ORDER
The agency shall supplement the record with:
1. An affidavit from the 1994 EEO Counselor addressing whether appellant
attempted to raise the matters at issue in the instant complaint in
1994 and addressing whether appellant was informed he could attempt to
resolve the matter outside of the EEO process and then later return to
the EEO process
2. All relevant notes from the 1994 EEO Counselor addressing appellant's
contact of an EEO Counselor in 1994.
The agency shall redetermine whether appellant timely contacted an EEO
Counselor. Within 30 days of the date this decision becomes final the
agency shall either issue a letter to appellant accepting the complaint
for investigation or issue a new decision to appellant dismissing the
complaint. A copy of the letter accepting the complaint or a copy of
the new decision dismissing the complaint must be sent to the Compliance
Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. §1614.503 (a). The appellant 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. §§ 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. §§ 1614.408 and 1614.409. 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© (Supp. V 1993).
If the appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. §1614.410.
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 (R0993)
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. 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:
November 24, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations | [] | [
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262 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/2019002964.pdf | 2019002964.pdf | PDF | application/pdf | 10,163 | McKinley P.,1 Complainant, v. Matthew P. Donovan, Acting Secretary, Department of the Air Force, Agency. | February 16, 2019 | Appeal Number: 2019002964
Background:
At the time of events giving rise to this complaint, Complainant was employed by the Agency as
an Aircraft Sheet Metal Mechanic, WG -3806- 10 at the 402D Commodities Maintenance Group
(CMXG/MXDBP) in Robins Air Force Base, Georgia. On February 23, 2015, Complainant filed an EEO complaint alleging that the A gency
discriminated against him based on his race (African -American), color (Black), age (53 & 55 ),
and reprisal for prior protected EEO activity under Title VII and the ADEA when :
1. Around June 2014, his supervisor denied him access to the Computer Lab to prevent him
from responding to the email inquiries of the EEO investigator who was investigating a
prior EEO complaint he filed - Complaint No. 9R1M14040. We take administrative notice
that this complaint was filed in March 2014;
2. By letter dated September 25, 2014, which Complainant received on September 29, 2014,
his third line supervisor denied his September 24, 2014 request for 40 hours of official time
to controvert the Commission’s appellate decision on a n EEO complaint he filed in
November 2013 – Complaint No. 9R1M13111. The Commission’s appellate decision was
EEOC Appeal No. 0120141738 (Jul. 17, 2014).
The Agency dismissed issue 1 for failure to timely initiate EEO counseling. It reasoned that the
matter oc curred in June 2014, and Complainant first raised it in the EEO process when he filed his
EEO complaint on February 23, 2015, beyond the 45 calendar day time limit to initiate EEO counseling. 29 C.F.R. § 1614.107(a)(2).
The Agency accepted issue 2 for in vestigation. Following an investigation, the Agency provided
Complainant with a copy of the report thereof and notice of his right to request a hearing before
an Administrative Judge with the EEOC. Because Complainant did not request a hearing, the
Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). The Agency found no discrimination.
The instant appeal followed. On appeal, Complainant makes no argument.
Legal Analysis:
the Commission’s appellate decision on a n EEO complaint he filed in
November 2013 – Complaint No. 9R1M13111. The Commission’s appellate decision was
EEOC Appeal No. 0120141738 (Jul. 17, 2014).
The Agency dismissed issue 1 for failure to timely initiate EEO counseling. It reasoned that the
matter oc curred in June 2014, and Complainant first raised it in the EEO process when he filed his
EEO complaint on February 23, 2015, beyond the 45 calendar day time limit to initiate EEO counseling. 29 C.F.R. § 1614.107(a)(2).
The Agency accepted issue 2 for in vestigation. Following an investigation, the Agency provided
Complainant with a copy of the report thereof and notice of his right to request a hearing before
an Administrative Judge with the EEOC. Because Complainant did not request a hearing, the
Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). The Agency found no discrimination.
The instant appeal followed. On appeal, Complainant makes no argument.
ANALYSIS AND FINDINGS
An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. § 1614.105(a)(1) & .107(a)(2). Complainant in itiated EEO counseling
regarding the EEO complaint before us on November 12, 2014, and first raised the June 2014 issue
1 matter in his EEO complaint, which he filed on February 23, 2015. Using either date,
Complainant failed to timely initiate EEO counseling on issue 1. The Agency’s dismissal thereof is affirmed.
The provision of official time is governed by 29 C.F.R. § 1614.605, which regards the
administrative EEO process. Because the provision of official time regards complaint processing, we will not address whether the denial thereof was discriminatory. Instead, we will just review
whether the Agency complied with 29 C.F.R. § 1614.605. Zysk v. Postal Service
, EEOC Appeal
No. 0120081834 (Sep. 4, 2008). This regulation provides, in part, that if the complainant is an
employee of the agency, he shall have a reasonable amount of official time, if otherwise on duty, to prepare the complaint and to respond to agency and EEOC requests for information.
On September 24, 2014, Complainant requested 40 hours of official time to c ontrovert the
Commission’s July 17, 2014 decision in EEOC Appeal No. 0120141738. In denying the request,
Complainant’s third line supervisor explained to him that the time limit to controvert the
Commission’s decision in EEOC Appeal N o. 0120141738 in the administrative process had
passed, and EEOC’s official time regulation applied to the administrative process, not the civil
action Federal court process. He further explained that 40 hours was not within the bounds of
reasonableness for preparing a request for reconsideration. We take administrative notice that
Complainant did not request the Commission to reconsider its decision in EEOC Appeal No.
0120141738. Nor does he contend that he intended to do so. In his EEO investigatory decl aration ,
Complainant stated he filed a civil action in federal court regarding Complaint No. 9R1M13111.
We find by a preponderance of the evidence that Complainant requested the 40 hours of official time to work on a civil action in a federal court.
Final Decision:
Accordingly, he was not entitled to official time under 29 C.F.R. § 1614.605. Moreover, even if Complainant sought 40 hours of official time in the administrative process to challenge the Commission’s appellate decision in EEOC Appeal No. 0120141738, this would have been unreasonable. The Commission’s decision in EEOC Appeal No. 0120141738 dismissed EEO complaint 9R1M13111, which regarded Complainant schedule for optional physical fitness time, for failure to state a claim because he was not harmed, i.e., w hile the Agency allegedly tried to give him an undesirable schedule, it did not do so. The request for 40 hours to challenge this simple decision would be far more than needed, by orders of magnitudes, and was not reasonable. The FAD is AFFIRMED. | McKinley P.,1
Complainant,
v.
Matthew P. Donovan,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 2019002964
Agency No. 9R1M15017F16
DECISION
On February 16, 2019, Complainant filed an appeal with the Equal Employment Opport unity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from a final Agency
decision (FAD) dated January 16, 2019, concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of
1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as
an Aircraft Sheet Metal Mechanic, WG -3806- 10 at the 402D Commodities Maintenance Group
(CMXG/MXDBP) in Robins Air Force Base, Georgia. On February 23, 2015, Complainant filed an EEO complaint alleging that the A gency
discriminated against him based on his race (African -American), color (Black), age (53 & 55 ),
and reprisal for prior protected EEO activity under Title VII and the ADEA when :
1. Around June 2014, his supervisor denied him access to the Computer Lab to prevent him
from responding to the email inquiries of the EEO investigator who was investigating a
prior EEO complaint he filed - Complaint No. 9R1M14040. We take administrative notice
that this complaint was filed in March 2014;
2. By letter dated September 25, 2014, which Complainant received on September 29, 2014,
his third line supervisor denied his September 24, 2014 request for 40 hours of official time
to controvert the Commission’s appellate decision on a n EEO complaint he filed in
November 2013 – Complaint No. 9R1M13111. The Commission’s appellate decision was
EEOC Appeal No. 0120141738 (Jul. 17, 2014).
The Agency dismissed issue 1 for failure to timely initiate EEO counseling. It reasoned that the
matter oc curred in June 2014, and Complainant first raised it in the EEO process when he filed his
EEO complaint on February 23, 2015, beyond the 45 calendar day time limit to initiate EEO counseling. 29 C.F.R. § 1614.107(a)(2).
The Agency accepted issue 2 for in vestigation. Following an investigation, the Agency provided
Complainant with a copy of the report thereof and notice of his right to request a hearing before
an Administrative Judge with the EEOC. Because Complainant did not request a hearing, the
Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). The Agency found no discrimination.
The instant appeal followed. On appeal, Complainant makes no argument.
ANALYSIS AND FINDINGS
An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. § 1614.105(a)(1) & .107(a)(2). Complainant in itiated EEO counseling
regarding the EEO complaint before us on November 12, 2014, and first raised the June 2014 issue
1 matter in his EEO complaint, which he filed on February 23, 2015. Using either date,
Complainant failed to timely initiate EEO counseling on issue 1. The Agency’s dismissal thereof is affirmed.
The provision of official time is governed by 29 C.F.R. § 1614.605, which regards the
administrative EEO process. Because the provision of official time regards complaint processing, we will not address whether the denial thereof was discriminatory. Instead, we will just review
whether the Agency complied with 29 C.F.R. § 1614.605. Zysk v. Postal Service
, EEOC Appeal
No. 0120081834 (Sep. 4, 2008). This regulation provides, in part, that if the complainant is an
employee of the agency, he shall have a reasonable amount of official time, if otherwise on duty, to prepare the complaint and to respond to agency and EEOC requests for information.
On September 24, 2014, Complainant requested 40 hours of official time to c ontrovert the
Commission’s July 17, 2014 decision in EEOC Appeal No. 0120141738. In denying the request,
Complainant’s third line supervisor explained to him that the time limit to controvert the
Commission’s decision in EEOC Appeal N o. 0120141738 in the administrative process had
passed, and EEOC’s official time regulation applied to the administrative process, not the civil
action Federal court process. He further explained that 40 hours was not within the bounds of
reasonableness for preparing a request for reconsideration. We take administrative notice that
Complainant did not request the Commission to reconsider its decision in EEOC Appeal No.
0120141738. Nor does he contend that he intended to do so. In his EEO investigatory decl aration ,
Complainant stated he filed a civil action in federal court regarding Complaint No. 9R1M13111.
We find by a preponderance of the evidence that Complainant requested the 40 hours of official time to work on a civil action in a federal court. Accordingly, he was not entitled to official time under 29 C.F.R. § 1614.605. Moreover, even if Complainant sought 40 hours of official time in
the administrative process to challenge the Commission’s appellate decision in EEOC Appeal No. 0120141738, this would have been unreasonable. The Commission’s decision in EEOC Appeal No. 0120141738 dismissed EEO complaint 9R1M13111, which regarded Complainant schedule
for optional physical fitness time, for failure to state a claim because he was not harmed, i.e., w hile
the Agency allegedly tried to give him an undesirable schedule, it did not do so. The request for 40 hours to challenge this simple decision would be far more than needed, by orders of magnitudes,
and was not reasonable.
The FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD -110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 appl icable filing period.
See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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 wi th 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 (S0610)
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 officia l 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
(Z0815)
If you want to file a civil a ction but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of request s. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
August 7, 2019
Date | [
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263 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a55337_r.txt | 01a55337_r.txt | TXT | text/plain | 11,108 | Vivian D. Williams v. Department of Veterans Affairs 01A55337 April 20, 2006 . Vivian D. Williams, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency. | April 20, 2006 | Appeal Number: 01A55337
Case Facts:
Complainant filed a timely appeal with this Commission from the final
agency decision dated June 22, 2005, dismissing her formal EEO complaint
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e
et seq.
In her formal complaint, filed on April 8, 2005, complainant claimed
that she was the victim of unlawful employment discrimination on the
basis of sex (female) when:
On December 8, 2004, a co-worker walked up to complainant and started
rubbing her shoulders and back, and later the same day the co-worker
again started rubbing her shoulders and unhooked her bra;
On December 13, 2004, the co-worker again began rubbing complainant's
shoulders. Complainant indicated that the co-worker did this at least
4 more times throughout the day; and that the co-worker again unhooked
her bra in front of everybody that was in the area. Complainant stated
that these incidents made her so angry that she unsuccessfully tried to
throw a computer mouse and a telephone at the co-worker before telling
him, don't worry, I'll handle you. Complainant indicated that she
then called the VA Police to report the incident.
On June 22, 2005, the agency issued a final decision. The agency
dismissed the complaint on the grounds of untimely EEO Counselor contact.
Specifically, the agency determined that complainant initiated EEO
Counselor contact on March 2, 2005, which it found to be seventy-nine
days after the last of the alleged discriminatory events.
The record reveals that the complainant spoke with the EEO Manager of
the Atlanta VA Medical Center on the afternoon of December 13, 2004,
to report the incident that occurred at complainant's work station at
the Decatur VA Medical Center. In a memorandum dated June 17, 2005, the
EEO Manager stated that she advised complainant that she should report
the incident to the police; informed complainant that the agency had
a zero tolerance for sexual harassment and that the co-worker would be
removed from the work area pending an investigation into the allegations;
and met complainant at the police department after she filed her police
complaint. The memorandum also indicated that complainant called or
stopped by the EEO manager's office every few weeks to find out the
status of the case.
In response to complainant's appeal, the agency indicates that complainant
had EEO training and should have been aware of her responsibility to
contact an EEO Counselor with the 45-day time limit.
Legal Analysis:
EEOC regulations require that complaints of discrimination be brought
to the attention of an EEO counselor within 45 days of the date of the
matter alleged to be discriminatory. 29 C.F.R. § 1614.105(a)(1).
The record reflects that complainant spoke with the EEO manager the day of
the last discriminatory event (December 13, 2004). The record reflects
further that complainant followed up with that individual concerning her
belief that action was being taken by the agency concerning the alleged
discriminatory event. Complainant's actions were consistent with an
individual attempting to pursue an EEO complaint of discrimination. The
Commission has consistently held that a complainant satisfies the
criterion of counselor contact by contacting an agency official
logically connected with the EEO process, even if that official is not
an EEO counselor, and by exhibiting an intent to begin the EEO process.
See Floyd v. National Guard Bureau, EEOC Request No. 05890086 (June 22,
1989); Colebrook v. Department of the Treasury, EEOC Appeal No. 01A03013
(July 5, 2000).
Here, the record supports a determination that complainant contacted
an agency official logically connected to the EEO complaint process on
December 13, 2004. The record also reflects that complainant's December
13, 2004 contact was made with the intent to begin the EEO complaint
process. Consequently, we find that complainant's initial EEO contact did
not occur in March 2005, as determined by the agency. Rather, we find
that complainant initiated EEO Counselor contact on December 13, 2004,
thereby rendering timely the claims raised in the instant complaint.
The agency's decision to dismiss complainant's complaint on the grounds
that complainant failed to seek EEO counseling in a timely fashion was
improper and is REVERSED. The complaint is REMANDED to the agency for
further processing in accordance with 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. | Vivian D. Williams v. Department of Veterans Affairs
01A55337
April 20, 2006
.
Vivian D. Williams,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A55337
Agency No. 2001-0508-2005101657
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated June 22, 2005, dismissing her formal EEO complaint
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e
et seq.
In her formal complaint, filed on April 8, 2005, complainant claimed
that she was the victim of unlawful employment discrimination on the
basis of sex (female) when:
On December 8, 2004, a co-worker walked up to complainant and started
rubbing her shoulders and back, and later the same day the co-worker
again started rubbing her shoulders and unhooked her bra;
On December 13, 2004, the co-worker again began rubbing complainant's
shoulders. Complainant indicated that the co-worker did this at least
4 more times throughout the day; and that the co-worker again unhooked
her bra in front of everybody that was in the area. Complainant stated
that these incidents made her so angry that she unsuccessfully tried to
throw a computer mouse and a telephone at the co-worker before telling
him, don't worry, I'll handle you. Complainant indicated that she
then called the VA Police to report the incident.
On June 22, 2005, the agency issued a final decision. The agency
dismissed the complaint on the grounds of untimely EEO Counselor contact.
Specifically, the agency determined that complainant initiated EEO
Counselor contact on March 2, 2005, which it found to be seventy-nine
days after the last of the alleged discriminatory events.
The record reveals that the complainant spoke with the EEO Manager of
the Atlanta VA Medical Center on the afternoon of December 13, 2004,
to report the incident that occurred at complainant's work station at
the Decatur VA Medical Center. In a memorandum dated June 17, 2005, the
EEO Manager stated that she advised complainant that she should report
the incident to the police; informed complainant that the agency had
a zero tolerance for sexual harassment and that the co-worker would be
removed from the work area pending an investigation into the allegations;
and met complainant at the police department after she filed her police
complaint. The memorandum also indicated that complainant called or
stopped by the EEO manager's office every few weeks to find out the
status of the case.
In response to complainant's appeal, the agency indicates that complainant
had EEO training and should have been aware of her responsibility to
contact an EEO Counselor with the 45-day time limit.
EEOC regulations require that complaints of discrimination be brought
to the attention of an EEO counselor within 45 days of the date of the
matter alleged to be discriminatory. 29 C.F.R. § 1614.105(a)(1).
The record reflects that complainant spoke with the EEO manager the day of
the last discriminatory event (December 13, 2004). The record reflects
further that complainant followed up with that individual concerning her
belief that action was being taken by the agency concerning the alleged
discriminatory event. Complainant's actions were consistent with an
individual attempting to pursue an EEO complaint of discrimination. The
Commission has consistently held that a complainant satisfies the
criterion of counselor contact by contacting an agency official
logically connected with the EEO process, even if that official is not
an EEO counselor, and by exhibiting an intent to begin the EEO process.
See Floyd v. National Guard Bureau, EEOC Request No. 05890086 (June 22,
1989); Colebrook v. Department of the Treasury, EEOC Appeal No. 01A03013
(July 5, 2000).
Here, the record supports a determination that complainant contacted
an agency official logically connected to the EEO complaint process on
December 13, 2004. The record also reflects that complainant's December
13, 2004 contact was made with the intent to begin the EEO complaint
process. Consequently, we find that complainant's initial EEO contact did
not occur in March 2005, as determined by the agency. Rather, we find
that complainant initiated EEO Counselor contact on December 13, 2004,
thereby rendering timely the claims raised in the instant complaint.
The agency's decision to dismiss complainant's complaint on the grounds
that complainant failed to seek EEO counseling in a timely fashion was
improper and is REVERSED. The complaint is REMANDED to the agency for
further processing in accordance with 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
April 20, 2006
__________________
Date
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264 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a55337.txt | 01a55337.txt | TXT | text/plain | 10,953 | Vivian D. Williams v. Department of Veterans Affairs 01A55337 April 20, 2006 . Vivian D. Williams, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency. | April 20, 2006 | Appeal Number: 01A55337
Case Facts:
Complainant filed a timely appeal with this Commission from the final
agency decision dated June 22, 2005, dismissing her formal EEO complaint
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e
et seq.
In her formal complaint, filed on April 8, 2005, complainant claimed
that she was the victim of unlawful employment discrimination on the
basis of sex (female) when:
On December 8, 2004, a co-worker walked up to complainant and started
rubbing her shoulders and back, and later the same day the co-worker
again started rubbing her shoulders and unhooked her bra;
On December 13, 2004, the co-worker again began rubbing complainant's
shoulders. Complainant indicated that the co-worker did this at least
4 more times throughout the day; and that the co-worker again unhooked
her bra in front of everybody that was in the area. Complainant stated
that these incidents made her so angry that she unsuccessfully tried to
throw a computer mouse and a telephone at the co-worker before telling
him, don't worry, I'll handle you. Complainant indicated that she
then called the VA Police to report the incident.
On June 22, 2005, the agency issued a final decision. The agency
dismissed the complaint on the grounds of untimely EEO Counselor contact.
Specifically, the agency determined that complainant initiated EEO
Counselor contact on March 2, 2005, which it found to be seventy-nine
days after the last of the alleged discriminatory events.
The record reveals that the complainant spoke with the EEO Manager of
the Atlanta VA Medical Center on the afternoon of December 13, 2004,
to report the incident that occurred at complainant's work station at
the Decatur VA Medical Center. In a memorandum dated June 17, 2005, the
EEO Manager stated that she advised complainant that she should report the
incident to the police; informed complainant that the agency had a zero
tolerance for sexual harassment and that the co-worker would be removed
from the work area pending an investigation into the allegations; and met
complainant at the police department after she filed her police complaint.
The memorandum also indicated that complainant called or stopped by the
EEO manager's office every few weeks to find out the status of the case.
In response to complainant's appeal, the agency indicates that complainant
had EEO training and should have been aware of her responsibility to
contact an EEO Counselor with the 45-day time limit.
Legal Analysis:
EEOC regulations require that complaints of discrimination be brought
to the attention of an EEO counselor within 45 days of the date of the
matter alleged to be discriminatory. 29 C.F.R. § 1614.105(a)(1).
The record reflects that complainant spoke with the EEO manager the day of
the last discriminatory event (December 13, 2004). The record reflects
further that complainant followed up with that individual concerning her
belief that action was being taken by the agency concerning the alleged
discriminatory event. Complainant's actions were consistent with an
individual attempting to pursue an EEO complaint of discrimination. The
Commission has consistently held that a complainant satisfies the
criterion of counselor contact by contacting an agency official
logically connected with the EEO process, even if that official is not
an EEO counselor, and by exhibiting an intent to begin the EEO process.
See Floyd v. National Guard Bureau, EEOC Request No. 05890086 (June 22,
1989); Colebrook v. Department of the Treasury, EEOC Appeal No. 01A03013
(July 5, 2000).
Here, the record supports a determination that complainant contacted
an agency official logically connected to the EEO complaint process on
December 13, 2004. The record also reflects that complainant's December
13, 2004 contact was made with the intent to begin the EEO complaint
process. Consequently, we find that complainant's initial EEO contact
did not occur in March 2005, as determined by the agency. Rather, we
find that complainant initiated EEO Counselor contact on December 13,
2004, thereby rendering timely the claims raised in the instant complaint.
The agency's decision to dismiss complainant's complaint on the grounds
that complainant failed to seek EEO counseling in a timely fashion was
improper and is REVERSED. The complaint is REMANDED to the agency for
further processing in accordance with 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. | Vivian D. Williams v. Department of Veterans Affairs
01A55337
April 20, 2006
.
Vivian D. Williams,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A55337
Agency No. 2001-0508-2005101657
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated June 22, 2005, dismissing her formal EEO complaint
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e
et seq.
In her formal complaint, filed on April 8, 2005, complainant claimed
that she was the victim of unlawful employment discrimination on the
basis of sex (female) when:
On December 8, 2004, a co-worker walked up to complainant and started
rubbing her shoulders and back, and later the same day the co-worker
again started rubbing her shoulders and unhooked her bra;
On December 13, 2004, the co-worker again began rubbing complainant's
shoulders. Complainant indicated that the co-worker did this at least
4 more times throughout the day; and that the co-worker again unhooked
her bra in front of everybody that was in the area. Complainant stated
that these incidents made her so angry that she unsuccessfully tried to
throw a computer mouse and a telephone at the co-worker before telling
him, don't worry, I'll handle you. Complainant indicated that she
then called the VA Police to report the incident.
On June 22, 2005, the agency issued a final decision. The agency
dismissed the complaint on the grounds of untimely EEO Counselor contact.
Specifically, the agency determined that complainant initiated EEO
Counselor contact on March 2, 2005, which it found to be seventy-nine
days after the last of the alleged discriminatory events.
The record reveals that the complainant spoke with the EEO Manager of
the Atlanta VA Medical Center on the afternoon of December 13, 2004,
to report the incident that occurred at complainant's work station at
the Decatur VA Medical Center. In a memorandum dated June 17, 2005, the
EEO Manager stated that she advised complainant that she should report the
incident to the police; informed complainant that the agency had a zero
tolerance for sexual harassment and that the co-worker would be removed
from the work area pending an investigation into the allegations; and met
complainant at the police department after she filed her police complaint.
The memorandum also indicated that complainant called or stopped by the
EEO manager's office every few weeks to find out the status of the case.
In response to complainant's appeal, the agency indicates that complainant
had EEO training and should have been aware of her responsibility to
contact an EEO Counselor with the 45-day time limit.
EEOC regulations require that complaints of discrimination be brought
to the attention of an EEO counselor within 45 days of the date of the
matter alleged to be discriminatory. 29 C.F.R. § 1614.105(a)(1).
The record reflects that complainant spoke with the EEO manager the day of
the last discriminatory event (December 13, 2004). The record reflects
further that complainant followed up with that individual concerning her
belief that action was being taken by the agency concerning the alleged
discriminatory event. Complainant's actions were consistent with an
individual attempting to pursue an EEO complaint of discrimination. The
Commission has consistently held that a complainant satisfies the
criterion of counselor contact by contacting an agency official
logically connected with the EEO process, even if that official is not
an EEO counselor, and by exhibiting an intent to begin the EEO process.
See Floyd v. National Guard Bureau, EEOC Request No. 05890086 (June 22,
1989); Colebrook v. Department of the Treasury, EEOC Appeal No. 01A03013
(July 5, 2000).
Here, the record supports a determination that complainant contacted
an agency official logically connected to the EEO complaint process on
December 13, 2004. The record also reflects that complainant's December
13, 2004 contact was made with the intent to begin the EEO complaint
process. Consequently, we find that complainant's initial EEO contact
did not occur in March 2005, as determined by the agency. Rather, we
find that complainant initiated EEO Counselor contact on December 13,
2004, thereby rendering timely the claims raised in the instant complaint.
The agency's decision to dismiss complainant's complaint on the grounds
that complainant failed to seek EEO counseling in a timely fashion was
improper and is REVERSED. The complaint is REMANDED to the agency for
further processing in accordance with 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
April 20, 2006
__________________
Date
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265 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120152782.r.txt | 0120152782.r.txt | TXT | text/plain | 10,378 | August V.,1 Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury, Agency. | August 10, 2015 | Appeal Number: 0120152782
Background:
At the time of events giving rise to this complaint, Complainant worked as an External Communications Advisor at the Agency's Fiscal Service Office of Legislative and Public Affairs facility in Washington, District of Columbia.
On November 24, 2014, Complainant requested 120 hours of annual leave to use by January 9, 2015. On November 26, 2014, Complainant's supervisor informed Complainant that, based on business-related reasons and the short notice of his request, he could only grant Complainant 80 hours of the leave he requested.
On December 24, 2014, Complainant initiated contact with an EEO Counselor on the matter, alleging the denial of his leave request was based on his age and disability. He did not file a formal EEO complaint at the time. Complainant then pursued alternative processes in an attempt to restore his leave.
When his leave was not restored, on June 3, 2015, Complainant again contacted an EEO Counselor concerning the matter. On July 20, 2015, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the bases of disability, age, and in reprisal for prior protected EEO activity under when on November 26, 2014, his request for annual leave was partially denied, forcing him to lose the unused leave.
On August 6, 2015, the EEO Office sent Complainant an email requesting the cause of Complainant's delay in following through with EEO counseling on this matter. Complainant responded that he had sought to recover his lost annual leave through other available alternatives.2
On August 10, 2015, the Agency dismissed the formal complaint on the grounds of untimely EEO Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency determined that though initiating contact in December 2014, Complainant then abandoned the EEO complaint process, in an effort to seek an alternative resolution to restore his leave. The Agency stated that after this alternative resolution attempt was unsuccessful, Complainant again attempted to resume the EEO process in June 2015, approximately 6 months after his initial EEO Counselor contact on December 24, 2014. The Agency determined that Complainant had abandoned his initial claim (December 24, 2014) and did not articulate a good cause for extending the regulatory time limits.
The instant appeal followed. On appeal, Complainant contends that the Agency presented "misleading and factually incorrect [information] for some critical points surrounding the timeliness of [his] request for an EEO hearing." Complainant states that he would provide documents demonstrating that he did indeed file everything in a timely manner. Complainant requested a few days to gather the documentation.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action.
EEOC regulations provide that the Agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. Ellis v. United States Postal Service, EEOC Request No. 01992093 (Nov. 29, 2000).
The Commission has held that "a complainant who receives counseling on an allegation, but does not go forward with a formal complaint on that allegation is deemed to have abandoned it and consequently, cannot raise it in another complaint." Small v. U.S. Postal Service, EEOC Request No. 05980289 (July 16, 1999). Here, Complainant first sought EEO counseling on the pay claim in December 2014, but did not continue to pursue the claim until June 2015. We therefore determined that Complainant abandoned his EEO contact of December 2014.
Additionally, the Commission has consistently held that use of internal agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Kramer v. United States Postal Service, EEOC Appeal No. 01954021 (October 5, 1995); Williams v. United States Postal Service, EEOC Request No. 05910291 (April 25, 1991); Ellis v. United States Postal Service, EEOC Request No. 01992093 (Nov. 29, 2000). Moreover, based on a review of the record, it does not appear that Complainant was unaware of the relevant time limitation. Therefore, we find that Complainant failed to provide sufficient justification for extending the time limit for contacting an EEO Counselor.
In sum, the record demonstrates that Complainant initially sought EEO counseling on December 24, 2014, regarding his claim. However, Complainant abandon his claim at that time in favor of alternative processes in an attempt to restore his leave and when those processes did not provide the relief he sought, Complainant returned to the EEO process on June 3, 2015, and then filed his formal complaint on July 20, 2015.
The Agency's decision to dismiss the complaint was proper and is hereby AFFIRMED for the reasons discussed above. | August V.,1
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120152782
Agency No. BFS151395F
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated August 10, 2015, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an External Communications Advisor at the Agency's Fiscal Service Office of Legislative and Public Affairs facility in Washington, District of Columbia.
On November 24, 2014, Complainant requested 120 hours of annual leave to use by January 9, 2015. On November 26, 2014, Complainant's supervisor informed Complainant that, based on business-related reasons and the short notice of his request, he could only grant Complainant 80 hours of the leave he requested.
On December 24, 2014, Complainant initiated contact with an EEO Counselor on the matter, alleging the denial of his leave request was based on his age and disability. He did not file a formal EEO complaint at the time. Complainant then pursued alternative processes in an attempt to restore his leave.
When his leave was not restored, on June 3, 2015, Complainant again contacted an EEO Counselor concerning the matter. On July 20, 2015, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the bases of disability, age, and in reprisal for prior protected EEO activity under when on November 26, 2014, his request for annual leave was partially denied, forcing him to lose the unused leave.
On August 6, 2015, the EEO Office sent Complainant an email requesting the cause of Complainant's delay in following through with EEO counseling on this matter. Complainant responded that he had sought to recover his lost annual leave through other available alternatives.2
On August 10, 2015, the Agency dismissed the formal complaint on the grounds of untimely EEO Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency determined that though initiating contact in December 2014, Complainant then abandoned the EEO complaint process, in an effort to seek an alternative resolution to restore his leave. The Agency stated that after this alternative resolution attempt was unsuccessful, Complainant again attempted to resume the EEO process in June 2015, approximately 6 months after his initial EEO Counselor contact on December 24, 2014. The Agency determined that Complainant had abandoned his initial claim (December 24, 2014) and did not articulate a good cause for extending the regulatory time limits.
The instant appeal followed. On appeal, Complainant contends that the Agency presented "misleading and factually incorrect [information] for some critical points surrounding the timeliness of [his] request for an EEO hearing." Complainant states that he would provide documents demonstrating that he did indeed file everything in a timely manner. Complainant requested a few days to gather the documentation.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action.
EEOC regulations provide that the Agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. Ellis v. United States Postal Service, EEOC Request No. 01992093 (Nov. 29, 2000).
The Commission has held that "a complainant who receives counseling on an allegation, but does not go forward with a formal complaint on that allegation is deemed to have abandoned it and consequently, cannot raise it in another complaint." Small v. U.S. Postal Service, EEOC Request No. 05980289 (July 16, 1999). Here, Complainant first sought EEO counseling on the pay claim in December 2014, but did not continue to pursue the claim until June 2015. We therefore determined that Complainant abandoned his EEO contact of December 2014.
Additionally, the Commission has consistently held that use of internal agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Kramer v. United States Postal Service, EEOC Appeal No. 01954021 (October 5, 1995); Williams v. United States Postal Service, EEOC Request No. 05910291 (April 25, 1991); Ellis v. United States Postal Service, EEOC Request No. 01992093 (Nov. 29, 2000). Moreover, based on a review of the record, it does not appear that Complainant was unaware of the relevant time limitation. Therefore, we find that Complainant failed to provide sufficient justification for extending the time limit for contacting an EEO Counselor.
In sum, the record demonstrates that Complainant initially sought EEO counseling on December 24, 2014, regarding his claim. However, Complainant abandon his claim at that time in favor of alternative processes in an attempt to restore his leave and when those processes did not provide the relief he sought, Complainant returned to the EEO process on June 3, 2015, and then filed his formal complaint on July 20, 2015.
The Agency's decision to dismiss the complaint was proper and is hereby AFFIRMED for the reasons discussed above.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
December 23, 2015
__________________
Date
2 On February 6, 2015, Complainant requested that the EEO Office's Deputy Commissioner restore 162 hours of unused leave. On April 30, 2015, the Deputy Commissioner restored 40 hours of leave.
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266 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120152741.r.txt | 0120152741.r.txt | TXT | text/plain | 10,750 | Gilda M.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Office of the Chief Financial Officer), Agency. | August 14, 2015 | Appeal Number: 0120152741
Background:
During the period at issue, Complainant worked as a Human Resources Specialist at the Agency's Government Employee Services Division in New Orleans, Louisiana.
On June 2, 2015, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination on the basis of reprisal for prior EEO activity when:
1. on November 10, 2014, she received a "Fully Successful" rating on her annual performance appraisal; and
2. on February 5, 2015, during a meeting to correct her performance appraisal rating, her supervisor failed to acknowledge that he ignored critical information in her accomplishments report and did not have meaningful dialogue with her about the matter.
In its August 14, 2015 final decision, the Agency dismissed claim 1 on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency determined that Complainant's initial EEO Counselor contact was on March 5, 2015, which it found to be beyond the 45-day limitation period.
Further, the Agency dismissed the second allegation in the complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim, finding that Complainant was not aggrieved.
The instant appeal followed.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action.
The Agency claims that Complainant's EEO counselor contact regarding her November 2014 performance rating was on March 5, 2015, well beyond the 45-day limitation period. Complainant, however, argues that she raised this allegation with the Agency's EEO office in an email dated November 12, 2014. The record shows that the Agency interpreted this email as a request to amend a previously filed EEO complaint (OCFO-2014-00282). However, since this complaint had already been investigated and was pending before an EEOC Administrative Judge (AJ), the Agency informed Complainant, by letter addressed to her attorney dated December 4, 2014, that it could not amend the complaint because it was pending a hearing. Therefore, Complainant was advised with either file a motion to amend with the AJ or to contact an Agency EEO counselor (contact information was provided) within 15 days to initiate a new complaint. The December 4 letter went on to state that, "any issue raised with the Counselor [if Complainant elected counseling for a new complaint] within 45 days prior to . . . November 12, 2014 . . . will be considered timely counseled." However, the record provides no indication that Complainant or her attorney contacted an EEO counselor or anyone else at the Agency within 15 days of receipt of this letter.
On January 13, 2015, and again on January 30, 2015, Complainant renewed her request that the Agency amend her prior complaint, after she had appealed her performance rating to an internal administrative board, which the Agency represents ruled in her favor. By letter from the Agency's EEO office dated March 4, 2015, she was again advised that she needed to either file a motion to amend with the AJ assigned to her prior EEO complaint, or contact an EEO counselor within 15 days to start a new complaint. She was further advised that the Agency would consider January 13, 2015, as the date of initial counselor contact. She contacted an EEO counselor the next day.
On appeal, Complainant argues that her November 12, 2014 request to amend her complaint should be considered her initial EEO counselor contact concerning her performance rating. The Agency initially agreed with her and informed her in writing that if she contacted an EEO counselor within 15 days of receipt of its letter, her contact would be considered timely. That would have been the case, except that there is no indication that she made this contact within the 15-day time period provided by the Agency.
Instead, Complainant did not contact the Agency again until January 13, 2015, 64 days after she received her performance rating. Once a complainant has abandoned an informal complaint, absent a showing of coercion, the complainant may not reactivate the EEO process by filing a new complaint on the same issue. See Allen v. Department of Defense, EEOC Request No. 05940168 (May 25, 1995). It appears that Complainant delayed raising the matter again until she received the results of her internal administrative appeal of her rating. However, the Commission has consistently held that the utilization of agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO counselor. See Ellis v. United States Postal Service, EEOC Appeal No. 01992093 (November 29, 2000).
As such, we agree with the Agency that Complainant initially abandoned her timely contact with an EEO counselor concerning her November 2014 performance rating and then tried to renew counselor contact well beyond the 45-day limitation period. As such, her claim was appropriately dismissed.
Failure to State a Claim
We find that Complainant's additional allegation concerning her February 2015 meeting with her supervisor about her November 2014 performance rating was also properly dismissed. First, a fair reading of the allegation makes it clear that it is inextricably tied to the performance rating itself, which has already been dismissed. Moreover, while Complainant attempts to cast it as part of a larger ongoing harassment claim, she was not provided any allegations to support such a claim.
Final Decision:
Accordingly, we concur with the Agency that this allegation, without more, fails to state a claim and was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1). CONCLUSION Accordingly, for the reasons stated above, the Agency's decision dismissing Complainant's complaint is AFFIRMED. | Gilda M.,1
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Office of the Chief Financial Officer),
Agency.
Appeal No. 0120152741
Agency No. OCFO-2015-00405
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated August 14, 2015, dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
BACKGROUND
During the period at issue, Complainant worked as a Human Resources Specialist at the Agency's Government Employee Services Division in New Orleans, Louisiana.
On June 2, 2015, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination on the basis of reprisal for prior EEO activity when:
1. on November 10, 2014, she received a "Fully Successful" rating on her annual performance appraisal; and
2. on February 5, 2015, during a meeting to correct her performance appraisal rating, her supervisor failed to acknowledge that he ignored critical information in her accomplishments report and did not have meaningful dialogue with her about the matter.
In its August 14, 2015 final decision, the Agency dismissed claim 1 on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency determined that Complainant's initial EEO Counselor contact was on March 5, 2015, which it found to be beyond the 45-day limitation period.
Further, the Agency dismissed the second allegation in the complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim, finding that Complainant was not aggrieved.
The instant appeal followed.
ANALYSIS AND FINDINGS
Untimely EEO Counselor Contact
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action.
The Agency claims that Complainant's EEO counselor contact regarding her November 2014 performance rating was on March 5, 2015, well beyond the 45-day limitation period. Complainant, however, argues that she raised this allegation with the Agency's EEO office in an email dated November 12, 2014. The record shows that the Agency interpreted this email as a request to amend a previously filed EEO complaint (OCFO-2014-00282). However, since this complaint had already been investigated and was pending before an EEOC Administrative Judge (AJ), the Agency informed Complainant, by letter addressed to her attorney dated December 4, 2014, that it could not amend the complaint because it was pending a hearing. Therefore, Complainant was advised with either file a motion to amend with the AJ or to contact an Agency EEO counselor (contact information was provided) within 15 days to initiate a new complaint. The December 4 letter went on to state that, "any issue raised with the Counselor [if Complainant elected counseling for a new complaint] within 45 days prior to . . . November 12, 2014 . . . will be considered timely counseled." However, the record provides no indication that Complainant or her attorney contacted an EEO counselor or anyone else at the Agency within 15 days of receipt of this letter.
On January 13, 2015, and again on January 30, 2015, Complainant renewed her request that the Agency amend her prior complaint, after she had appealed her performance rating to an internal administrative board, which the Agency represents ruled in her favor. By letter from the Agency's EEO office dated March 4, 2015, she was again advised that she needed to either file a motion to amend with the AJ assigned to her prior EEO complaint, or contact an EEO counselor within 15 days to start a new complaint. She was further advised that the Agency would consider January 13, 2015, as the date of initial counselor contact. She contacted an EEO counselor the next day.
On appeal, Complainant argues that her November 12, 2014 request to amend her complaint should be considered her initial EEO counselor contact concerning her performance rating. The Agency initially agreed with her and informed her in writing that if she contacted an EEO counselor within 15 days of receipt of its letter, her contact would be considered timely. That would have been the case, except that there is no indication that she made this contact within the 15-day time period provided by the Agency.
Instead, Complainant did not contact the Agency again until January 13, 2015, 64 days after she received her performance rating. Once a complainant has abandoned an informal complaint, absent a showing of coercion, the complainant may not reactivate the EEO process by filing a new complaint on the same issue. See Allen v. Department of Defense, EEOC Request No. 05940168 (May 25, 1995). It appears that Complainant delayed raising the matter again until she received the results of her internal administrative appeal of her rating. However, the Commission has consistently held that the utilization of agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO counselor. See Ellis v. United States Postal Service, EEOC Appeal No. 01992093 (November 29, 2000).
As such, we agree with the Agency that Complainant initially abandoned her timely contact with an EEO counselor concerning her November 2014 performance rating and then tried to renew counselor contact well beyond the 45-day limitation period. As such, her claim was appropriately dismissed.
Failure to State a Claim
We find that Complainant's additional allegation concerning her February 2015 meeting with her supervisor about her November 2014 performance rating was also properly dismissed. First, a fair reading of the allegation makes it clear that it is inextricably tied to the performance rating itself, which has already been dismissed. Moreover, while Complainant attempts to cast it as part of a larger ongoing harassment claim, she was not provided any allegations to support such a claim. Accordingly, we concur with the Agency that this allegation, without more, fails to state a claim and was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1).
CONCLUSION
Accordingly, for the reasons stated above, the Agency's decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
September 7, 2016
__________________
Date
------------------------------------------------------------
------------------------------------------------------------
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267 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a02076.txt | 01a02076.txt | TXT | text/plain | 9,732 | December 10, 1999 | Appeal Number: 01A02076
Case Facts:
The Commission finds that the agency's December 10, 1999 decision
dismissing the complaint on the basis of untimely EEO counselor
contact is proper pursuant to the provisions of 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified and hereinafter referred to as 29
C.F.R. §1614.107(a)(2)).<1>
The record shows that Complainant sought EEO counseling on October 31,
1998, claiming that she had been discriminated against on the bases of
sex, reprisal,<2> and age when in August 1997, she was not selected
for the position of secretary, GS-318-5, Announcement No. 24-87-224.
Complainant further claimed that on August 27, 1998, when she was
informed that the selectee stated he felt that he was not qualified
for the position in question, she decided to pursue the matter through
the EEO complaint process. Complainant also stated that she had tried
to resolve the situation through an Office of Inspector General (OIG)
inquiry, but without success. Subsequently, Complainant filed a formal
complaint concerning the non-selection issue.
The agency issued a final decision on December 10, 1999, dismissing the
complaint on the grounds of untimely EEO Counselor contact after finding
that Complainant's initial EEO Counselor contact on October 1, 1998,<3>
was more than 397 days beyond the 45-day time limitation provided by
Legal Analysis:
The Commission finds that the agency's December 10, 1999 decision
dismissing the complaint on the basis of untimely EEO counselor
contact is proper pursuant to the provisions of 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified and hereinafter referred to as 29
C.F.R. §1614.107(a)(2)).<1>
The record shows that Complainant sought EEO counseling on October 31,
1998, claiming that she had been discriminated against on the bases of
sex, reprisal,<2> and age when in August 1997, she was not selected
for the position of secretary, GS-318-5, Announcement No. 24-87-224.
Complainant further claimed that on August 27, 1998, when she was
informed that the selectee stated he felt that he was not qualified
for the position in question, she decided to pursue the matter through
the EEO complaint process. Complainant also stated that she had tried
to resolve the situation through an Office of Inspector General (OIG)
inquiry, but without success. Subsequently, Complainant filed a formal
complaint concerning the non-selection issue.
The agency issued a final decision on December 10, 1999, dismissing the
complaint on the grounds of untimely EEO Counselor contact after finding
that Complainant's initial EEO Counselor contact on October 1, 1998,<3>
was more than 397 days beyond the 45-day time limitation provided by
EEOC Regulations. The agency further found that Complainant's pursuit
of an OIG inquiry did not toll the 45-day time limit.
On appeal, Complainant contends that she filed within the 45 day time
frame and questions the EEO Counselor's report.
We have previously held that internal appeals or informal efforts to
challenge an agency's adverse action and/or the filing of a grievance
do not toll the running of the time limit to contact an EEO counselor.
See Hosford v. Department of Veterans Affairs, EEOC Request No. 05890038
(June 9, 1989).
Final Decision:
Accordingly, Complainant's attempt to resolve her concerns through and OIG inquiry is not sufficient to toll the 45-day time limit. The record shows that in August 1997, Complainant was not selected for the position in question. She did not contact an EEO Counselor until October 1998. Based on the foregoing, we find that Complainant's contention that she sought EEO counseling within 45 days of the discriminatory event, is not supported by the record. Moreover, we are unpersuaded by Complainant's assertion that she only learned in August 1998 that the selectee was not qualified justifies a delay in timely contacting an EEO Counselor. The non-selection occurred in August 1997. Complainant should have sought EEO counseling within 45 days of the alleged discriminatory event. The Commission applies a "reasonable suspicion" standard to the triggering date for determining the timeliness of the contact with an EEO counselor. Cochran v. USPS, EEOC Request No. 05920399 (June 18, 1992). Under this standard, the time period for contacting an EEO Counselor is triggered when the complainant should reasonably suspect discrimination, but before all the facts that would support a charge of discrimination may have become apparent. Id.; Paredes v. Nagle, 27 FEP Cases 1345 (D.D.C. 1982). The Commission notes that the basis of reprisal was not properly raised by Complainant. Under EEOC Regulations in order for a complainant to raise the basis of reprisal, he/she must have engaged in protected EEO related activity. See Ramirez v. DOD, EEOC Appeal No. 01970989 (October 13, 1999). Complainant's alleged refusal to commit a felony is not grounds for successfully raising the basis of reprisal. Accordingly, the final agency decision was proper and is hereby AFFIRMED. | Frieda M. Chaffins, )
Complainant, )
)
v. ) Appeal No. 01A02076
) Agency No. 990359
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
______________________________)
DECISION
The Commission finds that the agency's December 10, 1999 decision
dismissing the complaint on the basis of untimely EEO counselor
contact is proper pursuant to the provisions of 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified and hereinafter referred to as 29
C.F.R. §1614.107(a)(2)).<1>
The record shows that Complainant sought EEO counseling on October 31,
1998, claiming that she had been discriminated against on the bases of
sex, reprisal,<2> and age when in August 1997, she was not selected
for the position of secretary, GS-318-5, Announcement No. 24-87-224.
Complainant further claimed that on August 27, 1998, when she was
informed that the selectee stated he felt that he was not qualified
for the position in question, she decided to pursue the matter through
the EEO complaint process. Complainant also stated that she had tried
to resolve the situation through an Office of Inspector General (OIG)
inquiry, but without success. Subsequently, Complainant filed a formal
complaint concerning the non-selection issue.
The agency issued a final decision on December 10, 1999, dismissing the
complaint on the grounds of untimely EEO Counselor contact after finding
that Complainant's initial EEO Counselor contact on October 1, 1998,<3>
was more than 397 days beyond the 45-day time limitation provided by
EEOC Regulations. The agency further found that Complainant's pursuit
of an OIG inquiry did not toll the 45-day time limit.
On appeal, Complainant contends that she filed within the 45 day time
frame and questions the EEO Counselor's report.
We have previously held that internal appeals or informal efforts to
challenge an agency's adverse action and/or the filing of a grievance
do not toll the running of the time limit to contact an EEO counselor.
See Hosford v. Department of Veterans Affairs, EEOC Request No. 05890038
(June 9, 1989). Accordingly, Complainant's attempt to resolve her
concerns through and OIG inquiry is not sufficient to toll the 45-day
time limit. The record shows that in August 1997, Complainant was not
selected for the position in question. She did not contact an EEO
Counselor until October 1998. Based on the foregoing, we find that
Complainant's contention that she sought EEO counseling within 45 days
of the discriminatory event, is not supported by the record.
Moreover, we are unpersuaded by Complainant's assertion that she only
learned in August 1998 that the selectee was not qualified justifies a
delay in timely contacting an EEO Counselor. The non-selection occurred
in August 1997. Complainant should have sought EEO counseling within
45 days of the alleged discriminatory event. The Commission applies a
"reasonable suspicion" standard to the triggering date for determining
the timeliness of the contact with an EEO counselor. Cochran v. USPS,
EEOC Request No. 05920399 (June 18, 1992). Under this standard, the time
period for contacting an EEO Counselor is triggered when the complainant
should reasonably suspect discrimination, but before all the facts that
would support a charge of discrimination may have become apparent. Id.;
Paredes v. Nagle, 27 FEP Cases 1345 (D.D.C. 1982).
The Commission notes that the basis of reprisal was not properly raised
by Complainant. Under EEOC Regulations in order for a complainant to
raise the basis of reprisal, he/she must have engaged in protected
EEO related activity. See Ramirez v. DOD, EEOC Appeal No. 01970989
(October 13, 1999). Complainant's alleged refusal to commit a felony
is not grounds for successfully raising the basis of reprisal.
Accordingly, the final agency decision was proper and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
May 23, 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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
________ _________________________________
DATE EQUAL EMPLOYMENT ASSISTANT
1 On 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.
2 Complainant claimed that she had been subject to reprisal because she
would not commit a felony.
3 The final agency decision found that the initial EEO counselor contact
took place on October 1, 1998. The EEO Counselor's Report stated that the
initial contact occurred on October 31, 1998. Given our disposition of
the case, the disparity of the dates regarding the initial EEO Counselor
contact is not relevant, as both dates are well beyond the forty-five
day limitation period for timely contacting an EEO Counselor.
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268 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120160606.txt | 0120160606.txt | TXT | text/plain | 11,028 | Herman P.,1 Complainant, v. Eric Fanning, Acting Secretary, Department of the Army, Agency. | October 23, 2015 | Appeal Number: 0120160606
Background:
At the time of events giving rise to this complaint, Complainant was employed at the Agency's Letter Kenny Depot in Chambersburg, Pennsylvania.
On September 17, 2015, Complainant went to the EEO office to express his concerns to the EEO Chief about his work environment and that he wanted to resign. The EEO Chief suggested that Complainant return to his management to request a transfer to another location. On September 24, 2015, Complainant requested that an informal EEO complaint be processed regarding his claim of harassment due to his race, sex, disability and prior EEO activity. He noted that employees and management in his work area were trying to intimidate him by coughing when they walked by his work area. He also alleged that they were monitoring his emails and phone calls. He even asserted that he was being followed both at work and at home. The following day, management indicated to the EEO Office that they had a reassignment for Complainant. Subsequently, on September 28, 2015, Complainant resigned.
On September 29, 2015, the Agency sent Complainant a Notice of Right to File a formal complaint. On October 21, 2015,2 Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Black), sex (male), disability, and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when he was subjected to harassment. In his formal complaint, Complainant indicated that the harassment led him to seek employment outside of the Agency.
The Agency dismissed the complaint pursuant to 29 CFR § 1614.107(a)(2) for failing to raise the matter with an EEO Counselor. As such, the Agency dismissed the matter.
This appeal followed.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.107(a)(2) states that an agency shall dismiss a complaint that raises a matter that has not been brought to the attention of an EEO counselor and is not like or related to a matter that has been brought to the attention of an EEO counselor. Upon review of the record, we find that the Agency's dismissal was not appropriate.
The record showed that Complainant contacted the EEO Chief on September 17, 2015, regarding his claim of harassment. The EEO Chief sent Complainant back to the workplace and suggested that he resolve the matter with management. Complainant returned to the EEO Chief on September 24, 2015, in order to proceed with a claim of harassment based on his race, sex, disability and prior EEO activity. It was the EEO Chief who closed the informal EEO process and issued Complainant a Notice of Right to File a formal complaint when the EEO Chief learned that Complainant had resigned. Based on the Notice, Complainant filed his formal complaint alleging that he was subjected to harassment and that the harassment led to his constructive discharge from the Agency. We find that such a claim was brought to the attention of the EEO Chief. Furthermore, Complainant's claim of constructive discharge is like and related to his claim of harassment. As such, we determine that the Agency's dismissal of Complainant's claim of harassment including his claim of constructive discharge based on his race, sex, disability and prior EEO activity was not appropriate. | Herman P.,1
Complainant,
v.
Eric Fanning,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120160606
Agency No. ARLEAD15SEP03570
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated October 23, 2015, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed at the Agency's Letter Kenny Depot in Chambersburg, Pennsylvania.
On September 17, 2015, Complainant went to the EEO office to express his concerns to the EEO Chief about his work environment and that he wanted to resign. The EEO Chief suggested that Complainant return to his management to request a transfer to another location. On September 24, 2015, Complainant requested that an informal EEO complaint be processed regarding his claim of harassment due to his race, sex, disability and prior EEO activity. He noted that employees and management in his work area were trying to intimidate him by coughing when they walked by his work area. He also alleged that they were monitoring his emails and phone calls. He even asserted that he was being followed both at work and at home. The following day, management indicated to the EEO Office that they had a reassignment for Complainant. Subsequently, on September 28, 2015, Complainant resigned.
On September 29, 2015, the Agency sent Complainant a Notice of Right to File a formal complaint. On October 21, 2015,2 Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Black), sex (male), disability, and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when he was subjected to harassment. In his formal complaint, Complainant indicated that the harassment led him to seek employment outside of the Agency.
The Agency dismissed the complaint pursuant to 29 CFR § 1614.107(a)(2) for failing to raise the matter with an EEO Counselor. As such, the Agency dismissed the matter.
This appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.107(a)(2) states that an agency shall dismiss a complaint that raises a matter that has not been brought to the attention of an EEO counselor and is not like or related to a matter that has been brought to the attention of an EEO counselor. Upon review of the record, we find that the Agency's dismissal was not appropriate.
The record showed that Complainant contacted the EEO Chief on September 17, 2015, regarding his claim of harassment. The EEO Chief sent Complainant back to the workplace and suggested that he resolve the matter with management. Complainant returned to the EEO Chief on September 24, 2015, in order to proceed with a claim of harassment based on his race, sex, disability and prior EEO activity. It was the EEO Chief who closed the informal EEO process and issued Complainant a Notice of Right to File a formal complaint when the EEO Chief learned that Complainant had resigned. Based on the Notice, Complainant filed his formal complaint alleging that he was subjected to harassment and that the harassment led to his constructive discharge from the Agency. We find that such a claim was brought to the attention of the EEO Chief. Furthermore, Complainant's claim of constructive discharge is like and related to his claim of harassment. As such, we determine that the Agency's dismissal of Complainant's claim of harassment including his claim of constructive discharge based on his race, sex, disability and prior EEO activity was not appropriate.
CONCLUSION
Based on a thorough review of the record, we REVERSE the Agency's final decision and REMAND the matter for further processing in accordance with the ORDER below.
ORDER (E0610)
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 (K0610)
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 77960, Washington, DC 20013. 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 (M0815)
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), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (R0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
February 23, 2016
__________________
Date
2 We note that Complainant's formal complaint has a fax stamp on it indicating that it was submitted on October 21, 2015, however the Agency determined that it was filed on October 22, 2015.
------------------------------------------------------------
------------------------------------------------------------
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269 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120110647.txt | 0120110647.txt | TXT | text/plain | 24,237 | Damita Klaiber, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency. | October 25, 2010 | Appeal Number: 0120110647
Complaint Allegations:
In her complaint, Complainant alleged that the Agency had discriminated against her based on her race (African American) by subjecting her to a hostile work environment when the following occurred: 1. From approximately March 7, 2005, Complainant was informed she would be assigned to a smaller office. 2. From April 2005 to October 9, 2007, Complainant was not kept informed about budget items. 3. From May 2005 to December 2005, Complainant was denied EEO Specialist course training; in September 2006, Complainant was denied the opportunity to provide EEO Counselor training at Lakenheath, England; in February 2007, Complainant was denied the opportunity to provide training in Bangladesh, India; in June 20, 2007, Complainant was initially denied MEONET; and Complainant was denied True Color training. 4. In December 2005, Complainant's timesheet was changed and she received a nasty electronic mail from her supervisor. 5. From September 2005 to October 9, 2007, while left in charge of the office, Complainant was not identified on her supervisor's voice mail as the person to contact and from November 2006 to October 9, 2007, Complainant was denied access to the long distance telephone line in the absence of her supervisor. 6. On August 23, 2006 to October 9, 2007, Complainant was denied the opportunity to be the point of contact for mediation requests; on May 5. 2006, Complainant was required to have a complainant complete a claim statement; in July 2006, Complainant was chastised for meeting with the Air Force Base Wing Commander and she was removed from working as a Sexual Assault Response Coordinator (SARC) Victims Advocate; on December 21, 2006, Complainant was told to obtain an extension for a complainant and the case was taken away from Complainant; Complainant became aware that her supervisor had not turned in a new position description to Civilian Personnel reflecting her responsibilities of managing the Alternative Dispute Resolution (ADR) program; Complainant was not included on courtesy copies regarding pertinent items relating to the office; while on temporary duty (TDY) and leave, Complainant was required to turn her active cases over to a less experienced Counselor and not allowed to request an extension. 7. From June 2005 to November 7, 2006, Complainant was constantly encouraged to move on and apply for other positions, while being denied the opportunity for a promotion at her current installation. 8. In February 2006, Complainant was denied a rental car while on TDY; in May 2006, Complainant was limited on the amount of rental car money while on TDY; in August 2006, Complainant was told that she would not be paid for rental car expenses incurred on TDY. 9. On June 30, 2007, Complainant became aware that her supervisor was attempting to fill his position which he was vacating with a Caucasian, although Complainant had made him aware of her interest in the position; on September 20, 2007, Complainant became aware that the Wing Commander was aware of the problems between her and the EEO Manager. 10. On July 25 and 28, 2007, August 13 and 24, 2007, and September 10, 2007, Complainant's supervisor refused to sign extension paperwork for Complainant to remain in Germany and paperwork for her to return to her position at Luke Air Force Base in Arizona. 11. On August 1, 2007, Complainant's supervisor questioned her about not leaving him a note as to her whereabouts when she left the office. 12. On September 13, 2007, Complainant was not included or briefed on a meeting with the Military Equal Opportunity (MEO) regarding the EEO and MEO merger; on September 18, 2007, Complainant was left out of discussions regarding the EEO budget relative to the EEO/MEO merger. 13. Complainant was denied the opportunity to earn compensatory time; Complainant's 2006 appraisal reflected a .5 percent bonus only; Complainant became aware that she received less compensatory time on her 2007 appraisal than her co-worker received; Complainant became aware that she was denied an award for resolving a high profile mediation case at Lakenheath. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. Over the objection of Complainant, the AJ granted summary judgment. In his decision, the AJ first determined that the record was appropriately developed and was sufficient for him to adjudicate. Although Complainant had raised the issue that she did not receive documentation requested from the Agency during discovery, the AJ noted that Complainant did not submit any motion to compel discovery. The AJ also noted that, in his Acknowledgment and Order, the parties were informed that if a party failed to respond to discovery requests, a motion to compel had a 10-day filing period and if none were filed, it would be deemed waived. The AJ first concluded that the complaint was untimely. Complainant asserted that she was untimely because she feared being labeled a whistleblower and harming her career and she therefore delayed filing until obtaining employment elsewhere. The AJ rejected the assertion noting that fear of reprisal did not justify a failure to file timely. Regarding the merits of Complainant's complaint, the AJ found that, assuming arguendo, the complaint was timely, that Complainant was not subjected to discriminatory harassment, considering the frequency of the conduct, its severity, whether the conduct was physically threatening or humiliating and whether it unreasonably interfered with work performance. The AJ found that the incidents were numerous but not sufficiently severe to constitute harassment. Regarding the incidents that the Agency did not dispute, AJ found that the Agency had articulated legitimate, nondiscriminatory reasons for its actions. He found that Complainant had failed to show that the Agency's reasons were pretextual, having failed to present evidence of pretext, and that her supervisor was motivated by racial animus. The AJ concluded that the reasons articulated by the Agency were sufficient to justify summary judgment in favor of the Agency.
Background:
At the time of the events giving rise to this complaint, Complainant worked as an EEO Specialist in the Agency's Equal Employment Office in Germany. She began working in the Agency's EEO office in March 2005. Complainant had been working for the Federal government for 23 years and she indicated that she had been working in the EEO career field since 1987. Other than Complainant, the only other employees working in the Agency's EEO office were the EEO Manager who was Complainant's supervisor, and an EEO Assistant. Complainant left the Agency in December 2007, to work for the Department of Veterans Affairs as an EEO Manager in Asheville, North Carolina.
Complainant alleged generally that her supervisor (Caucasian) treated her differently from the way he treated the EEO Assistant (Caucasian) and subjected Complainant to a hostile work environment. She identified several incidents of alleged discrimination that occurred while working under the supervision of her supervisor.
In her complaint, Complainant alleged that the Agency had discriminated against her based on her race (African American) by subjecting her to a hostile work environment when the following occurred:
1. From approximately March 7, 2005, Complainant was informed she would be assigned to a smaller office.
2. From April 2005 to October 9, 2007, Complainant was not kept informed about budget items.
3. From May 2005 to December 2005, Complainant was denied EEO Specialist course training; in September 2006, Complainant was denied the opportunity to provide EEO Counselor training at Lakenheath, England; in February 2007, Complainant was denied the opportunity to provide training in Bangladesh, India; in June 20, 2007, Complainant was initially denied MEONET; and Complainant was denied True Color training.
4. In December 2005, Complainant's timesheet was changed and she received a nasty electronic mail from her supervisor.
5. From September 2005 to October 9, 2007, while left in charge of the office, Complainant was not identified on her supervisor's voice mail as the person to contact and from November 2006 to October 9, 2007, Complainant was denied access to the long distance telephone line in the absence of her supervisor.
6. On August 23, 2006 to October 9, 2007, Complainant was denied the opportunity to be the point of contact for mediation requests; on May 5. 2006, Complainant was required to have a complainant complete a claim statement; in July 2006, Complainant was chastised for meeting with the Air Force Base Wing Commander and she was removed from working as a Sexual Assault Response Coordinator (SARC) Victims Advocate; on December 21, 2006, Complainant was told to obtain an extension for a complainant and the case was taken away from Complainant; Complainant became aware that her supervisor had not turned in a new position description to Civilian Personnel reflecting her responsibilities of managing the Alternative Dispute Resolution (ADR) program; Complainant was not included on courtesy copies regarding pertinent items relating to the office; while on temporary duty (TDY) and leave, Complainant was required to turn her active cases over to a less experienced Counselor and not allowed to request an extension.
7. From June 2005 to November 7, 2006, Complainant was constantly encouraged to move on and apply for other positions, while being denied the opportunity for a promotion at her current installation.
8. In February 2006, Complainant was denied a rental car while on TDY; in May 2006, Complainant was limited on the amount of rental car money while on TDY; in August 2006, Complainant was told that she would not be paid for rental car expenses incurred on TDY.
9. On June 30, 2007, Complainant became aware that her supervisor was attempting to fill his position which he was vacating with a Caucasian, although Complainant had made him aware of her interest in the position; on September 20, 2007, Complainant became aware that the Wing Commander was aware of the problems between her and the EEO Manager.
10. On July 25 and 28, 2007, August 13 and 24, 2007, and September 10, 2007, Complainant's supervisor refused to sign extension paperwork for Complainant to remain in Germany and paperwork for her to return to her position at Luke Air Force Base in Arizona.
11. On August 1, 2007, Complainant's supervisor questioned her about not leaving him a note as to her whereabouts when she left the office.
12. On September 13, 2007, Complainant was not included or briefed on a meeting with the Military Equal Opportunity (MEO) regarding the EEO and MEO merger; on September 18, 2007, Complainant was left out of discussions regarding the EEO budget relative to the EEO/MEO merger.
13. Complainant was denied the opportunity to earn compensatory time; Complainant's 2006 appraisal reflected a .5 percent bonus only; Complainant became aware that she received less compensatory time on her 2007 appraisal than her co-worker received; Complainant became aware that she was denied an award for resolving a high profile mediation case at Lakenheath.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. Over the objection of Complainant, the AJ granted summary judgment.
In his decision, the AJ first determined that the record was appropriately developed and was sufficient for him to adjudicate. Although Complainant had raised the issue that she did not receive documentation requested from the Agency during discovery, the AJ noted that Complainant did not submit any motion to compel discovery. The AJ also noted that, in his Acknowledgment and Order, the parties were informed that if a party failed to respond to discovery requests, a motion to compel had a 10-day filing period and if none were filed, it would be deemed waived.
The AJ first concluded that the complaint was untimely. Complainant asserted that she was untimely because she feared being labeled a whistleblower and harming her career and she therefore delayed filing until obtaining employment elsewhere. The AJ rejected the assertion noting that fear of reprisal did not justify a failure to file timely. Regarding the merits of Complainant's complaint, the AJ found that, assuming arguendo, the complaint was timely, that Complainant was not subjected to discriminatory harassment, considering the frequency of the conduct, its severity, whether the conduct was physically threatening or humiliating and whether it unreasonably interfered with work performance. The AJ found that the incidents were numerous but not sufficiently severe to constitute harassment. Regarding the incidents that the Agency did not dispute, AJ found that the Agency had articulated legitimate, nondiscriminatory reasons for its actions. He found that Complainant had failed to show that the Agency's reasons were pretextual, having failed to present evidence of pretext, and that her supervisor was motivated by racial animus. The AJ concluded that the reasons articulated by the Agency were sufficient to justify summary judgment in favor of the Agency.
Legal Analysis:
the Commission AFFIRMS the dismissal.
BACKGROUND
At the time of the events giving rise to this complaint, Complainant worked as an EEO Specialist in the Agency's Equal Employment Office in Germany. She began working in the Agency's EEO office in March 2005. Complainant had been working for the Federal government for 23 years and she indicated that she had been working in the EEO career field since 1987. Other than Complainant, the only other employees working in the Agency's EEO office were the EEO Manager who was Complainant's supervisor, and an EEO Assistant. Complainant left the Agency in December 2007, to work for the Department of Veterans Affairs as an EEO Manager in Asheville, North Carolina.
Complainant alleged generally that her supervisor (Caucasian) treated her differently from the way he treated the EEO Assistant (Caucasian) and subjected Complainant to a hostile work environment. She identified several incidents of alleged discrimination that occurred while working under the supervision of her supervisor.
In her complaint, Complainant alleged that the Agency had discriminated against her based on her race (African American) by subjecting her to a hostile work environment when the following occurred:
1. From approximately March 7, 2005, Complainant was informed she would be assigned to a smaller office.
2. From April 2005 to October 9, 2007, Complainant was not kept informed about budget items.
3. From May 2005 to December 2005, Complainant was denied EEO Specialist course training; in September 2006, Complainant was denied the opportunity to provide EEO Counselor training at Lakenheath, England; in February 2007, Complainant was denied the opportunity to provide training in Bangladesh, India; in June 20, 2007, Complainant was initially denied MEONET; and Complainant was denied True Color training.
4. In December 2005, Complainant's timesheet was changed and she received a nasty electronic mail from her supervisor.
5. From September 2005 to October 9, 2007, while left in charge of the office, Complainant was not identified on her supervisor's voice mail as the person to contact and from November 2006 to October 9, 2007, Complainant was denied access to the long distance telephone line in the absence of her supervisor.
6. On August 23, 2006 to October 9, 2007, Complainant was denied the opportunity to be the point of contact for mediation requests; on May 5. 2006, Complainant was required to have a complainant complete a claim statement; in July 2006, Complainant was chastised for meeting with the Air Force Base Wing Commander and she was removed from working as a Sexual Assault Response Coordinator (SARC) Victims Advocate; on December 21, 2006, Complainant was told to obtain an extension for a complainant and the case was taken away from Complainant; Complainant became aware that her supervisor had not turned in a new position description to Civilian Personnel reflecting her responsibilities of managing the Alternative Dispute Resolution (ADR) program; Complainant was not included on courtesy copies regarding pertinent items relating to the office; while on temporary duty (TDY) and leave, Complainant was required to turn her active cases over to a less experienced Counselor and not allowed to request an extension.
7. From June 2005 to November 7, 2006, Complainant was constantly encouraged to move on and apply for other positions, while being denied the opportunity for a promotion at her current installation.
8. In February 2006, Complainant was denied a rental car while on TDY; in May 2006, Complainant was limited on the amount of rental car money while on TDY; in August 2006, Complainant was told that she would not be paid for rental car expenses incurred on TDY.
9. On June 30, 2007, Complainant became aware that her supervisor was attempting to fill his position which he was vacating with a Caucasian, although Complainant had made him aware of her interest in the position; on September 20, 2007, Complainant became aware that the Wing Commander was aware of the problems between her and the EEO Manager.
10. On July 25 and 28, 2007, August 13 and 24, 2007, and September 10, 2007, Complainant's supervisor refused to sign extension paperwork for Complainant to remain in Germany and paperwork for her to return to her position at Luke Air Force Base in Arizona.
11. On August 1, 2007, Complainant's supervisor questioned her about not leaving him a note as to her whereabouts when she left the office.
12. On September 13, 2007, Complainant was not included or briefed on a meeting with the Military Equal Opportunity (MEO) regarding the EEO and MEO merger; on September 18, 2007, Complainant was left out of discussions regarding the EEO budget relative to the EEO/MEO merger.
13. Complainant was denied the opportunity to earn compensatory time; Complainant's 2006 appraisal reflected a .5 percent bonus only; Complainant became aware that she received less compensatory time on her 2007 appraisal than her co-worker received; Complainant became aware that she was denied an award for resolving a high profile mediation case at Lakenheath.
At the
Final Decision:
Accordingly, her contact was untimely. In addition, the Commission finds that Complainant has not provided adequate justification to extend the time limitation period. Complainant stated that she did not initiate contact because she feared reprisal. Congress anticipated that Title VII complainants might fear reprisal and provided a remedy for discrimination against any individual because the individual opposed any practice made unlawful under Title VII, or because the individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII. See Section 704 (a) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e-3(a); and see Woljan v. Environmental Protection Agency, EEOC Request No. 05950361 (Oct. 5, 1995). The Commission has repeatedly held that "mere fear of reprisal is an insufficient justification for extending the time limitation for contacting an EEO Counselor." Roublow v. Dep't of Veterans Affairs, EEOC Request No, 05A01106 (Jan. 3, 2003); Duncan v. Dep't of Veterans Affairs, EEOC Request No. 05970315 (July 10, 1998); Kovarik v. Dep't of Defense, EEOC Request No. 05930898 (Dec. 9, 1993). Complainant also stated that part of her delay was deciding that she was being discriminated against. Where, as here, a complainant has some reason to support his or her belief that discrimination has occurred, contact with an EEO Counselor must occur within 45 days; "waiting until one has proof of discrimination before initiating a complaint can result in untimely contact." Bracken v. U.S. Postal Service, EEOC Request No. 05900065 (Mar. 29, 1990). The Commission also notes that Complainant stated that she had informed upper management about her supervisor's behavior. The Commission has long held that a complainant may satisfy the criterion of EEO Counselor contact by initiating contact with an agency official "logically connected" to the EEO process, even if the official is not an EEO Counselor. Floyd v. Nat'l Guard Bureau, EEOC Request No. 05890086 (June 22, 1989). Complainant stated that she had reported the conduct to upper management previous to the October 2009 contact to inform them that she was being subjected to discrimination. Assuming, without deciding, that these officials were logically connected to the EEO process, Complainant's allegation that she approached and informed upper management about the very alleged discrimination that she feared would result in reprisal and injury to her career is inconsistent. In addition, although in her affidavit Complainant stated that the Wing Commander knew of the problems between her and her supervisor, she did not indicate when he knew. In addition, she also stated in her affidavit that she had not met with him prior to September 27, 2009. ROI Ex. F-5 at 388. Further, there is no evidence that Complainant exhibited an intent to begin the EEO process regarding the alleged discrimination when she allegedly reported her supervisor's conduct. See Cox v. Dep't of Housing and Urban Development, EEOC Request No. 05980083 (July 30, 1998); Allen v. U.S. Postal Service, EEOC Request No. 05950933 (July 9, 1996). Complainant has failed to provide adequate justification to extend the requisite time limits for timely EEO contact. Therefore, the Agency's dismissal on the grounds of untimely EEO Contact was proper. Having decided as we have, the Commission need not address the Agency's finding of no discrimination. CONCLUSION The Agency's dismissal is AFFIRMED. | Damita Klaiber,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120110647
Hearing No. 570-2010-00245X
Agency No. 9N0D08004H09
DECISION
By appeal postmarked October 25, 2010, Complainant filed an appeal from the September 16, 2010 decision on summary judgment of an EEOC Administrative Judge (AJ) concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.1 The appeal is accepted pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the dismissal.
BACKGROUND
At the time of the events giving rise to this complaint, Complainant worked as an EEO Specialist in the Agency's Equal Employment Office in Germany. She began working in the Agency's EEO office in March 2005. Complainant had been working for the Federal government for 23 years and she indicated that she had been working in the EEO career field since 1987. Other than Complainant, the only other employees working in the Agency's EEO office were the EEO Manager who was Complainant's supervisor, and an EEO Assistant. Complainant left the Agency in December 2007, to work for the Department of Veterans Affairs as an EEO Manager in Asheville, North Carolina.
Complainant alleged generally that her supervisor (Caucasian) treated her differently from the way he treated the EEO Assistant (Caucasian) and subjected Complainant to a hostile work environment. She identified several incidents of alleged discrimination that occurred while working under the supervision of her supervisor.
In her complaint, Complainant alleged that the Agency had discriminated against her based on her race (African American) by subjecting her to a hostile work environment when the following occurred:
1. From approximately March 7, 2005, Complainant was informed she would be assigned to a smaller office.
2. From April 2005 to October 9, 2007, Complainant was not kept informed about budget items.
3. From May 2005 to December 2005, Complainant was denied EEO Specialist course training; in September 2006, Complainant was denied the opportunity to provide EEO Counselor training at Lakenheath, England; in February 2007, Complainant was denied the opportunity to provide training in Bangladesh, India; in June 20, 2007, Complainant was initially denied MEONET; and Complainant was denied True Color training.
4. In December 2005, Complainant's timesheet was changed and she received a nasty electronic mail from her supervisor.
5. From September 2005 to October 9, 2007, while left in charge of the office, Complainant was not identified on her supervisor's voice mail as the person to contact and from November 2006 to October 9, 2007, Complainant was denied access to the long distance telephone line in the absence of her supervisor.
6. On August 23, 2006 to October 9, 2007, Complainant was denied the opportunity to be the point of contact for mediation requests; on May 5. 2006, Complainant was required to have a complainant complete a claim statement; in July 2006, Complainant was chastised for meeting with the Air Force Base Wing Commander and she was removed from working as a Sexual Assault Response Coordinator (SARC) Victims Advocate; on December 21, 2006, Complainant was told to obtain an extension for a complainant and the case was taken away from Complainant; Complainant became aware that her supervisor had not turned in a new position description to Civilian Personnel reflecting her responsibilities of managing the Alternative Dispute Resolution (ADR) program; Complainant was not included on courtesy copies regarding pertinent items relating to the office; while on temporary duty (TDY) and leave, Complainant was required to turn her active cases over to a less experienced Counselor and not allowed to request an extension.
7. From June 2005 to November 7, 2006, Complainant was constantly encouraged to move on and apply for other positions, while being denied the opportunity for a promotion at her current installation.
8. In February 2006, Complainant was denied a rental car while on TDY; in May 2006, Complainant was limited on the amount of rental car money while on TDY; in August 2006, Complainant was told that she would not be paid for rental car expenses incurred on TDY.
9. On June 30, 2007, Complainant became aware that her supervisor was attempting to fill his position which he was vacating with a Caucasian, although Complainant had made him aware of her interest in the position; on September 20, 2007, Complainant became aware that the Wing Commander was aware of the problems between her and the EEO Manager.
10. On July 25 and 28, 2007, August 13 and 24, 2007, and September 10, 2007, Complainant's supervisor refused to sign extension paperwork for Complainant to remain in Germany and paperwork for her to return to her position at Luke Air Force Base in Arizona.
11. On August 1, 2007, Complainant's supervisor questioned her about not leaving him a note as to her whereabouts when she left the office.
12. On September 13, 2007, Complainant was not included or briefed on a meeting with the Military Equal Opportunity (MEO) regarding the EEO and MEO merger; on September 18, 2007, Complainant was left out of discussions regarding the EEO budget relative to the EEO/MEO merger.
13. Complainant was denied the opportunity to earn compensatory time; Complainant's 2006 appraisal reflected a .5 percent bonus only; Complainant became aware that she received less compensatory time on her 2007 appraisal than her co-worker received; Complainant became aware that she was denied an award for resolving a high profile mediation case at Lakenheath.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. Over the objection of Complainant, the AJ granted summary judgment.
In his decision, the AJ first determined that the record was appropriately developed and was sufficient for him to adjudicate. Although Complainant had raised the issue that she did not receive documentation requested from the Agency during discovery, the AJ noted that Complainant did not submit any motion to compel discovery. The AJ also noted that, in his Acknowledgment and Order, the parties were informed that if a party failed to respond to discovery requests, a motion to compel had a 10-day filing period and if none were filed, it would be deemed waived.
The AJ first concluded that the complaint was untimely. Complainant asserted that she was untimely because she feared being labeled a whistleblower and harming her career and she therefore delayed filing until obtaining employment elsewhere. The AJ rejected the assertion noting that fear of reprisal did not justify a failure to file timely. Regarding the merits of Complainant's complaint, the AJ found that, assuming arguendo, the complaint was timely, that Complainant was not subjected to discriminatory harassment, considering the frequency of the conduct, its severity, whether the conduct was physically threatening or humiliating and whether it unreasonably interfered with work performance. The AJ found that the incidents were numerous but not sufficiently severe to constitute harassment. Regarding the incidents that the Agency did not dispute, AJ found that the Agency had articulated legitimate, nondiscriminatory reasons for its actions. He found that Complainant had failed to show that the Agency's reasons were pretextual, having failed to present evidence of pretext, and that her supervisor was motivated by racial animus. The AJ concluded that the reasons articulated by the Agency were sufficient to justify summary judgment in favor of the Agency.
ANALYSIS AND FINDINGS
Commission's regulations allow an AJ to issue a decision without a hearing when the AJ finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the AJ must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. § 1614.109(g)(2).
EEOC Regulation 29 C.F.R. § 1614.105(a) (1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the matter alleged to be discriminatory or in the case of personnel action within 45 days of the effective date of the action. EEOC Regulations also provide that the Agency or the Commission shall extend the time limits when the individual shows that the individual was not notified of the time limits and was not otherwise aware of them, that the individual did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence the individual was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. See 29 C.F.R. § 1614.105(a)(2); §1614.604(c).
As an initial matter, the Commission finds that the grant of summary judgment was proper as there exists no genuine issue of material fact. A party cannot avoid summary judgment by resting on bare assertions, general denials, conclusory allegations or mere suspicion. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. Anderson, 477 U.S. at 247-48.
The Commission next addresses the issue of the timeliness of EEO Counselor contact.2
Although Complainant does not address the timeliness issue directly in her opposition to the Agency's motion for summary judgment, Complainant asserts that she contacted the Wing Commander in March 2007, about the problems that she was having with her supervisor. Complainant further asserts in her opposition that she explained to the Wing Commander that she was being subjected to disparate treatment and also pointed out to him that she was receiving a negative appraisal. Complainant asserted further that by September 2007, she decided to file a complaint because she "could not deny the fact" that she was being subjected to disparate treatment and harassment. Complainant asserted that the Wing Commander told her in a meeting with Complainant in September 2007, that he was aware of the problems between her and her supervisor. She also asserted that she had also pointed out prior to then that she was not being treated fairly. In addition, Complainant asserted that she had discussed this with the legal advisor to the Wing.
The record contains the EEO Counselor's Report which reflects that Complainant contacted the EEO Office on October 9, 2007.
In her affidavit, Complainant stated that she did not make contact within the requisite 45 days because she was trying to convince herself that she was not being subjected to discrimination. She also stated that she realized that as a consequence of filing an EEO complaint, she would be labeled a whistleblower and that her complaint would have sunk her career locally and within the Agency. Complainant stated that she did not take EEO action until after leaving Ramstein Air Force Base in Germany. She also stated that she had tried informally to let upper management and legal personnel at Ramstein know. Complainant stated that USAFE MAJCOM knew about her supervisor's unethical behavior but for the most part, she was ignored. Complainant stated that her hope was that something would be done at the local level to stop the prejudicial and disparate behavior.
Also in her affidavit, Complainant stated that she found out from other Agency EEO personnel, some of whom had worked with her supervisor at a previous assignment, about his reputation for unethical behavior and, also, that his bullying was well-known throughout the EEO community. She stated that if the Wing and Deputy Wing Commanders were not going to intervene to stop the disparate, prejudicial, unethical, and bullying behavior of her supervisor, why should she have any confidence that anyone else would. Complainant stated that her supervisor's unethical behavior and prejudice were so blatant that other complainants filed complaints against him, with a majority of the complainants being African American. She stated also that because of the stress and abuse to which she had been subjected, she decided to take a risk and file a complaint against her supervisor and, in so doing, do what for many years no one else was brave enough to do.
The finding of untimely EEO Counselor contact was proper. Complainant contacted an EEO Counselor on October 9, 2009. Complainant did not identified any incident which occurred within 45 days prior to the October 9, 2009 contact. Accordingly, her contact was untimely.
In addition, the Commission finds that Complainant has not provided adequate justification to extend the time limitation period. Complainant stated that she did not initiate contact because she feared reprisal. Congress anticipated that Title VII complainants might fear reprisal and provided a remedy for discrimination against any individual because the individual opposed any practice made unlawful under Title VII, or because the individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII. See Section 704 (a) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e-3(a); and see Woljan v. Environmental Protection Agency, EEOC Request No. 05950361 (Oct. 5, 1995). The Commission has repeatedly held that "mere fear of reprisal is an insufficient justification for extending the time limitation for contacting an EEO Counselor." Roublow v. Dep't of Veterans Affairs, EEOC Request No, 05A01106 (Jan. 3, 2003); Duncan v. Dep't of Veterans Affairs, EEOC Request No. 05970315 (July 10, 1998); Kovarik v. Dep't of Defense, EEOC Request No. 05930898 (Dec. 9, 1993).
Complainant also stated that part of her delay was deciding that she was being discriminated against. Where, as here, a complainant has some reason to support his or her belief that discrimination has occurred, contact with an EEO Counselor must occur within 45 days; "waiting until one has proof of discrimination before initiating a complaint can result in untimely contact." Bracken v. U.S. Postal Service, EEOC Request No. 05900065 (Mar. 29, 1990).
The Commission also notes that Complainant stated that she had informed upper management about her supervisor's behavior. The Commission has long held that a complainant may satisfy the criterion of EEO Counselor contact by initiating contact with an agency official "logically connected" to the EEO process, even if the official is not an EEO Counselor. Floyd v. Nat'l Guard Bureau, EEOC Request No. 05890086 (June 22, 1989). Complainant stated that she had reported the conduct to upper management previous to the October 2009 contact to inform them that she was being subjected to discrimination. Assuming, without deciding, that these officials were logically connected to the EEO process, Complainant's allegation that she approached and informed upper management about the very alleged discrimination that she feared would result in reprisal and injury to her career is inconsistent. In addition, although in her affidavit Complainant stated that the Wing Commander knew of the problems between her and her supervisor, she did not indicate when he knew. In addition, she also stated in her affidavit that she had not met with him prior to September 27, 2009. ROI Ex. F-5 at 388. Further, there is no evidence that Complainant exhibited an intent to begin the EEO process regarding the alleged discrimination when she allegedly reported her supervisor's conduct. See Cox v. Dep't of Housing and Urban Development, EEOC Request No. 05980083 (July 30, 1998); Allen v. U.S. Postal Service, EEOC Request No. 05950933 (July 9, 1996).
Complainant has failed to provide adequate justification to extend the requisite time limits for timely EEO contact. Therefore, the Agency's dismissal on the grounds of untimely EEO Contact was proper. Having decided as we have, the Commission need not address the Agency's finding of no discrimination.
CONCLUSION
The Agency's dismissal is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
April 12, 2012
__________________
Date
1 The EEOC's AJ's decision, which dismissed the complaint on the grounds of untimeliness and which also found no discrimination, was issued September 16, 2010. Using the rebuttable presumption of receipt within five days of mailing, the Agency would have received the AJ's decision by September 21, 2010. Therefore, the Agency had 40 days from September 21, 2010 to issue its decision; otherwise, the AJ's decision would become the final agency decision by operation of law pursuant to 29 C.F.R. § 1614.109(i). The Agency's decision, which adopted the AJ's decision, was issued October 29, 2010, within the 40-day time requirement. Accordingly, when Complainant filed her appeal on October 25, 2010, her appeal was premature. With the issuance of the Agency's decision, Complainant's appeal is now ripe for adjudication. Accordingly, the Commission will exercise its discretion and accept Complainant's appeal. Even if the Agency's decision were not timely issued, the AJ's decision, from which Complainant appealed, would have become the decision of the Agency by operation of law.
2 Although in its motion for summary judgment the Agency references the 45-day time period as the time for the filing of a formal complaint, the Agency cited as authority 29 C.F.R. 1614.105(a)(1) which provides for the 45-day requirement for timely EEO Counselor contact.
------------------------------------------------------------
------------------------------------------------------------
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"Woljan v. Environmental Protection Agency, EEOC Request No. 05950361 (Oct. 5, 1995)",
"Duncan v. Dep't of Veterans Affairs, EEOC Request No. 05970315 (July 10, 1998)",
"Kovarik v. Dep't of Defense, EEOC Request No. 05930898 (Dec. 9, 1993)",
"Bracken v. U.S. Postal Service, EEOC Request No. 05900065 (Mar. 29,... | [
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270 | https://www.eeoc.gov/sites/default/files/decisions/2023_04_21/2021003820.pdf | 2021003820.pdf | PDF | application/pdf | 22,678 | Jeanie G.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Agricultural Research Service), Agency. | June 22, 2021 | Appeal Number: 2021003820
Background:
At the time of the events at issue , Complainant was working as a Biological Science Technician,
Grade GS -8, for the Agency’s U.S. National Poultry Research Center, at its Southeast Poultry
Research Laboratory (SEPRL) in Athens, Georgia. He had worked in this position for approxim ately ten years. Prior to starting with the Agency, Complainant had eleven years of
non-Agency experience, includi ng two years in botany, one year in veterinary medicine, and
seven years with the forestry school at a major research university.
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
2 2021003820
In early 2018, Complainant’s direct supervisor left the Agency. As a result, Complainant was
placed under the direct supervision of a Microb iologist, Grade GS -15. Complainant’s second-
line supervisor was the Research Leader of the Agency’s Endemic Poultry Viral Disease
Research Unit. Complainant’s third- level supervisor was the SEPRL’s Director. Complainant
stated her prior supervisor had long rated her annual performance as “outstanding.” However,
the Microbiologist had only rated Complainant “fully successful” in her first year under his
supervision. On May 7, 2020, Complainant filed an EEO complaint alleging she was subjected to unlawful retalia tion for prior EEO -protected activity (prior EEO complaints Agency No. ARS -2018- 00915
and Agency No. ARS -2019- 00030) when:
1a. The Microbiologist and Research Lead required Complainant to provide daily
progress reports and her laboratory notebook for re view;
1b. On March 4, 2020, the Microbiologist ignored Complainant’s request for overtime to complete Complainant’s tasks;
1c. On February 27, 2020, the Microbiologist assigned Complainant new collater al
duties;
1d. Complainant’s time and attendan ce code was changed, resulting in a change in
supervisory approval authority of her leave and overtime requests;
1e. Between March 6, 2020, and March 18, 2020, the Microbiologist re peatedly sent
emails to Complainant’s personal email address, made phone calls to
Complainant’s personal cell phone during official duty hours and shared Complainant’s private contact information with management officials and a colleague; and
1f. Agency management limited Complainant’s time to work on EEO -related issues.
After an investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On May 13, 2021, the AJ notifi ed the p arties of
his intent to issue summary judgment. The AJ’s notice of intent specified that responses from Complainant or the Agency were due no later than May 28, 2021. Neither Complainant nor the Agency filed a timely response to the AJ’s notice of intent .
2 As a result, on June 3, 2021, the AJ
issued his decision without a hearing in favor of the Agency. Subsequently, on June 4, 2021, the Agency issued a final order adopting the AJ’s decision .
2 However, Complainant had previously filed her own motion for summary judgment on January
13, 2021, which the AJ had denied.
3 2021003820
The instant appeal followed. On appeal, Complainant reiterates her position that the overall
evidence of record showed that the Agency had subjected her to unlawful retaliation .
Additionally, Complainant contest s the Agency’s appellate response statement as untimely.3
Legal Analysis:
the Commission’s website.
2 2021003820
In early 2018, Complainant’s direct supervisor left the Agency. As a result, Complainant was
placed under the direct supervision of a Microb iologist, Grade GS -15. Complainant’s second-
line supervisor was the Research Leader of the Agency’s Endemic Poultry Viral Disease
Research Unit. Complainant’s third- level supervisor was the SEPRL’s Director. Complainant
stated her prior supervisor had long rated her annual performance as “outstanding.” However,
the Microbiologist had only rated Complainant “fully successful” in her first year under his
supervision. On May 7, 2020, Complainant filed an EEO complaint alleging she was subjected to unlawful retalia tion for prior EEO -protected activity (prior EEO complaints Agency No. ARS -2018- 00915
and Agency No. ARS -2019- 00030) when:
1a. The Microbiologist and Research Lead required Complainant to provide daily
progress reports and her laboratory notebook for re view;
1b. On March 4, 2020, the Microbiologist ignored Complainant’s request for overtime to complete Complainant’s tasks;
1c. On February 27, 2020, the Microbiologist assigned Complainant new collater al
duties;
1d. Complainant’s time and attendan ce code was changed, resulting in a change in
supervisory approval authority of her leave and overtime requests;
1e. Between March 6, 2020, and March 18, 2020, the Microbiologist re peatedly sent
emails to Complainant’s personal email address, made phone calls to
Complainant’s personal cell phone during official duty hours and shared Complainant’s private contact information with management officials and a colleague; and
1f. Agency management limited Complainant’s time to work on EEO -related issues.
After an investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On May 13, 2021, the AJ notifi ed the p arties of
his intent to issue summary judgment. The AJ’s notice of intent specified that responses from Complainant or the Agency were due no later than May 28, 2021. Neither Complainant nor the Agency filed a timely response to the AJ’s notice of intent .
2 As a result, on June 3, 2021, the AJ
issued his decision without a hearing in favor of the Agency. Subsequently, on June 4, 2021, the Agency issued a final order adopting the AJ’s decision .
2 However, Complainant had previously filed her own motion for summary judgment on January
13, 2021, which the AJ had denied.
3 2021003820
The instant appeal followed. On appeal, Complainant reiterates her position that the overall
evidence of record showed that the Agency had subjected her to unlawful retaliation .
Additionally, Complainant contest s the Agency’s appellate response statement as untimely.3
ANALYSIS AND FINDINGS
The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal cour t. Fed.
R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appr opriate where an AJ
determines no genuine issue of material fact exists under the legal and evidentiary standards. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment
motion, the AJ is to determine whether there a re genuine issues for trial, as opposed to weighing
the evidence. Id. at 249. At the summary judgment stage, the AJ must believe the non- moving
party’s evidence and must draw justif iable inferences in the non -moving party’s favor. Id. at 255.
A “genuine is sue of fact” is one that a reasonable AJ could find in favor for the non- moving
party. See Celotex v. Catrett , 477 U.S. 317, 322 -23 (1986); Oliver v. Digital Equip. Corp., 846
F.2d 103, 105 (1st Cir. 1988). A “materia l” fact has the potential to affect the outcome of a case.
An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We
carefully reviewed the record and find that it is adequately developed. To successfully oppose a
decision without a hearing, Complainant must identify material facts in record that are in dispute, or the Complainant must present further material evidence establishing facts in dispute.
Official EEO Time: Claim 1f As an initial matter, we conside red Complainant’s Claim 1f concerning denial of official EEO
time in violation of 29 C.F.R. § 1614.605(b). Edwards v. U.S. Postal Se rv., EEOC Request No.
05950708 (Oct. 31, 1996). Even w ithout finding discrimination, this Commission has broad
authority to rem edy violations of the official EEO time regulation, 29 C.F.R. § 1614.605(b).
Brandon v. U.S. Postal Serv., EEOC Appeal No. 0120080803 (July 24, 2009) (upholding the
AJ’s decision requiring an agency to reimburse a complainant for 10.5 hours of paid leave for improperly denied official EEO time). 29 C.F.R. § 1614.605(b) provides that the Agency must grant Complainant a reasonable amount of official EEO time to prepare her EEO complaint and to respond to Agency or EEOC requests for information or during the investigation, informal
adjustment, or hearings on an EEO complaint.
3 In her rebuttal to the Agency appellate brief, Complainant re quested that the Commission r eject
the Agency’s untimely appellate response. We concur that the Agency ’s brief was untimely
filed. | Jeanie G.,1
Complainant,
v.
Thomas J. Vilsack,
Secretary,
Department of Agriculture
(Agricultural Research Service),
Agency.
Appeal No. 2021003820
Hearing No. 410-2021-00037X
Agency No. ARS-2020-00657
DECISION
On June 22, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 4, 2021 final order concerning equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
BACKGROUND
At the time of the events at issue , Complainant was working as a Biological Science Technician,
Grade GS -8, for the Agency’s U.S. National Poultry Research Center, at its Southeast Poultry
Research Laboratory (SEPRL) in Athens, Georgia. He had worked in this position for approxim ately ten years. Prior to starting with the Agency, Complainant had eleven years of
non-Agency experience, includi ng two years in botany, one year in veterinary medicine, and
seven years with the forestry school at a major research university.
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
2 2021003820
In early 2018, Complainant’s direct supervisor left the Agency. As a result, Complainant was
placed under the direct supervision of a Microb iologist, Grade GS -15. Complainant’s second-
line supervisor was the Research Leader of the Agency’s Endemic Poultry Viral Disease
Research Unit. Complainant’s third- level supervisor was the SEPRL’s Director. Complainant
stated her prior supervisor had long rated her annual performance as “outstanding.” However,
the Microbiologist had only rated Complainant “fully successful” in her first year under his
supervision. On May 7, 2020, Complainant filed an EEO complaint alleging she was subjected to unlawful retalia tion for prior EEO -protected activity (prior EEO complaints Agency No. ARS -2018- 00915
and Agency No. ARS -2019- 00030) when:
1a. The Microbiologist and Research Lead required Complainant to provide daily
progress reports and her laboratory notebook for re view;
1b. On March 4, 2020, the Microbiologist ignored Complainant’s request for overtime to complete Complainant’s tasks;
1c. On February 27, 2020, the Microbiologist assigned Complainant new collater al
duties;
1d. Complainant’s time and attendan ce code was changed, resulting in a change in
supervisory approval authority of her leave and overtime requests;
1e. Between March 6, 2020, and March 18, 2020, the Microbiologist re peatedly sent
emails to Complainant’s personal email address, made phone calls to
Complainant’s personal cell phone during official duty hours and shared Complainant’s private contact information with management officials and a colleague; and
1f. Agency management limited Complainant’s time to work on EEO -related issues.
After an investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On May 13, 2021, the AJ notifi ed the p arties of
his intent to issue summary judgment. The AJ’s notice of intent specified that responses from Complainant or the Agency were due no later than May 28, 2021. Neither Complainant nor the Agency filed a timely response to the AJ’s notice of intent .
2 As a result, on June 3, 2021, the AJ
issued his decision without a hearing in favor of the Agency. Subsequently, on June 4, 2021, the Agency issued a final order adopting the AJ’s decision .
2 However, Complainant had previously filed her own motion for summary judgment on January
13, 2021, which the AJ had denied.
3 2021003820
The instant appeal followed. On appeal, Complainant reiterates her position that the overall
evidence of record showed that the Agency had subjected her to unlawful retaliation .
Additionally, Complainant contest s the Agency’s appellate response statement as untimely.3
ANALYSIS AND FINDINGS
The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal cour t. Fed.
R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appr opriate where an AJ
determines no genuine issue of material fact exists under the legal and evidentiary standards. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment
motion, the AJ is to determine whether there a re genuine issues for trial, as opposed to weighing
the evidence. Id. at 249. At the summary judgment stage, the AJ must believe the non- moving
party’s evidence and must draw justif iable inferences in the non -moving party’s favor. Id. at 255.
A “genuine is sue of fact” is one that a reasonable AJ could find in favor for the non- moving
party. See Celotex v. Catrett , 477 U.S. 317, 322 -23 (1986); Oliver v. Digital Equip. Corp., 846
F.2d 103, 105 (1st Cir. 1988). A “materia l” fact has the potential to affect the outcome of a case.
An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We
carefully reviewed the record and find that it is adequately developed. To successfully oppose a
decision without a hearing, Complainant must identify material facts in record that are in dispute, or the Complainant must present further material evidence establishing facts in dispute.
Official EEO Time: Claim 1f As an initial matter, we conside red Complainant’s Claim 1f concerning denial of official EEO
time in violation of 29 C.F.R. § 1614.605(b). Edwards v. U.S. Postal Se rv., EEOC Request No.
05950708 (Oct. 31, 1996). Even w ithout finding discrimination, this Commission has broad
authority to rem edy violations of the official EEO time regulation, 29 C.F.R. § 1614.605(b).
Brandon v. U.S. Postal Serv., EEOC Appeal No. 0120080803 (July 24, 2009) (upholding the
AJ’s decision requiring an agency to reimburse a complainant for 10.5 hours of paid leave for improperly denied official EEO time). 29 C.F.R. § 1614.605(b) provides that the Agency must grant Complainant a reasonable amount of official EEO time to prepare her EEO complaint and to respond to Agency or EEOC requests for information or during the investigation, informal
adjustment, or hearings on an EEO complaint.
3 In her rebuttal to the Agency appellate brief, Complainant re quested that the Commission r eject
the Agency’s untimely appellate response. We concur that the Agency ’s brief was untimely
filed. Accordingly, we have declined to consider the Agency’s appellate brief and our decision
relies on the record and Complainant’s appellate submissions.
4 2021003820
The focus in Claim 1f is not on discriminatory motivation, but whether the Agency can
reasonably justify denying the amount of official EEO time that Complainant requested. Moorman v. U.S. Postal Serv., EEOC Appeal No. 0120123527 (Jan. 31, 2013).
Here, the Research Manager testified that two hours of official EEO time were authorized per
pay period, but employees could request additional EEO time from their supervisors. Both the
Research Manager and the Microbiologist further claimed that that Complainant’s requests for additional official EEO time were gener ally granted. The record included one instance in March
2020, when Complainant requested six hours of additional official EEO t ime to travel to Atlanta
so that she could consult with her EEO representative, but the Agency only granted her four
hours of of ficial EEO time. The Microbiologist testified that it was estimated that Complainant’s
round- trip to Atlanta would take three ho urs, and therefore the Research Manager decided to
limit Complainant its grant of official EEO time accordingly. Complainant ha s maintained that
the Agency’s restrictions on her taking official EEO time have forced her to use countless hours
of personal t ime. We remind Complainant that she was not entitled to unlimited official EEO
time upon requesting it. Rather the Agency was only had to provide her a “reasonable amount”
of official EEO time. This Commission has permitted management to partially deny requests for
official EEO time where it has articulated a valid reason for doing so. In a similar situation, we affirmed an AJ’ s finding that a complainant’s second- line supervisor had reasonably reduced the
grant of official EEO time from eight hours to one hour of official EEO based on his assessment of the time needed for the EEO activity described in that complainant’s request . Yun C. v. Dep’t
of Justice , EEOC Appeal No. 0120181140 (Nov. 6, 2018). Likewise, in the present case,
Complainant has not pe rsuaded us that the Agency’s limits on her use of official EEO time were
unreasonable.
Retaliatory Harassment: Claims 1a, 1b, 1c, 1d, and 1e
We now turn to the merits of Complainant’s claims of retaliatory harassment within this instant case. EEOC reviews reprisal claims with a broad view of coverage. Retaliatory actions which can be challenged are not restricted to those wh ich affect a term or condition of employment.
Instead, employees or applicants for employment are protected from employer acts t hat are
reasonably likely to deter them from engaging in protected activity. See Burlington N. and Santa
Fe Ry. Co. v. White , 548 U.S. 53 at 67- 68 (2006); also Carroll v. Dep't of the Army, EEOC
Request No. 05970939 (Apr. 4, 2000). To ultimately prevail on her claim of retaliatory harassment, Complainant must show that she was subjected to conduct sufficient to dissuade a reasonab le employee from making or supporting a charge of discrimination. EEOC Enforcement
Guidance on Retaliation and Related Issues , EEOC Notice No. 015.004, at § II(B)(3) and at Note
137 (Aug. 25, 2016). Only if both elements, of retaliatory motivation and the chilling effect against protected EEO activity, are present, them the Commission will hold the Agency liable for reprisal -based harassment. Janeen S. v. Dep’t of Commerce , EEOC Appeal No. 0120160024
(Dec. 20, 2017).
5 2021003820
In Claim 1a, Complainant alleged th at she had to document her daily work, through daily emails
and in a laboratory notebook and that none of her coworkers was required to do so. However the
record reveals that it was Complainant, who requested to be excused from speaking at meetings
and was permitted to avoid face -to-face interactions with her supervisor as a disability
accommodation. In offering Complainant reasonable accommodation in response to her request,
the Microbiologist explained that requiring Complainant to email him a daily report and his daily reviewing her laboratory notebook, were part of his adjusted approach to supervising her while granting her re quest to avoid face -to-face interactions with him. The Research Lead similarly
described the Microbiologists monitoring measure as necessary because Complainant did not want to communicate directly with her supervisor. Consequently, we are not persuaded t hat
there was a retaliatory motive behind the Agency’s action described in Claim 1a. Regarding Claim 1b, it is unclear when C omplainant requested overtime or whether it was
denied. We observed that on March 4, 2020, the day Complainant claimed her over time request
was denied, she emailed requesting two hours of EEO time on March 6, 2020. That same day, the Microbiologist emailed her back and simply responded “Approved.” We find their aforementioned email exchange indicated that, if Complainant were to request overtime in
advance and provided her rationale for doing so, then the Microbiologist would have considered such a request without considering her EEO activity in making his grant or deny decision.
Regarding Claim 1c, the Microbiologist articulated a non- retaliatory reason for changing
Complainant’s collateral duty assignment of ordering supplies and monitoring SEPRL’s s upply
inventory. Specifically, the Microbiologist explained that Complainant had complained to him
that she was spending as much as half of her duty hours working on ordering supplies and
managing inventory. The Microbiologist stated that Complainant was reassigned creation of Red
Blood Cells for research as her collateral duty. The Microbiologist reasoned that this collateral
Red Blood Cell duty would only require two hours per week, so that Complainant could devote more of her duty time to her primary laboratory and that assigning Complainant the Red Blood
Cell collateral duty would help Complainant develop a skill and SEPRL sometimes used the Red Blood Cells in its research. Beyond her accusation itself we find the record devoid of supporting evidence of a retaliatory motive for the Microbiologist changing Complainant’s collateral duty. Regarding Claim 1d, the Agency explained that approval authority for Complainant’s time and attendance was changed to correct an administrative error. Apparent ly, after Complainant came
under the Microbiologist’s supervision, management in headquarters had erroneously made the Research Leader as opposed to her direct supervisor the approving authority for Complainant’s leave on the Agency’s time and attendance system. After the error was discovered, the Research Leader certified Complainant’s time and attendance records based on the Microbiologist’s review. In March 2020, the Agency appropriately made the Microbiologist the authority for Complainant’s time and attendance, not in reprisal for Complainant’s EEO activities, but rather
because the Mi crobiologist was her immediate supervisor.
6 2021003820
As to Claim 1e, contemporaneous email correspondence showed that the Microbiologist sent
Complainant an email on Mar ch 10, 2020, notifying her that he wanted to conduct her quarterly
performance review at 10:00 AM the following day. Complainant did not respond. As part of
the Agency’s reasonable accommodation, the Microbiologist and Complainant had agreed that
he woul d provide her quarterly review over the phone. But on March 11, 2020, Complainant did
not respond to her supervisor’s email scheduling the quarterly review appointment. When
Complainant did not call the Microbiologist when he had scheduled, he attempted to contact her on both at her office phone and on her mobile phone. Complainant did not answer either of these
phone calls. The Microbiologist therefore emailed to Complainant’s personal email address requesting that she call him back in thirty minutes. Instead, the Microbiologist stated that he
used Complainant’s personal email address b ecause she had previously “courtesy- copied” that
address in her official emails. The Microbiologist stated he was unaware that Complainant did not want him to use her personal email or personal phone number until she told him once they
made contact on Mar ch 11, 2020. The Microbiologist denied he had intended to harass
Complainant. After Complainant informed the Microbiologist that she did not want him to contact her v ia personal email or on her personal mobile phone, the Microbiologist apologized
for do ing so and stated that it had been an accident. Complainant has failed to demonstrate
retaliatory motivations. In sum, Complainant failed to establish improper reta liatory intent as she had alleged in Claims
1a, 1b, 1c, 1d, and 1e. Moreover, her retaliatory harassment claims also fail because the
management actions alleged were neither sufficiently severe nor pervasive enough to dissuade a reasonable employee from p ursuing the EEO proc ess. To the contrary, Complainant’s having to
document her work, having an overtime request denied, errors on her time -and-attendance
records, and misdirected calls or emails merely amounted to routine supervision, personality conflic ts, or general indignities. These events were what this Commission has considered to be
typical workplace indignities which do not rise to the level of harassment in violation of Title
VII. Hertha W. v. Dep't of State , EEOC Appeal No. 2021002040 (May 23, 2022).
In reaching this conclusion, we note Complainant argued on appeal that during a July 2019
conversation with the Microbiologist concerning her second quarter performance, an event which
is not part of the instant complaint, the Microbiologist stated words to t he effect that that he was
not confident in recommending Complainant for promotion to GS -9 because she had spent too
much time on her complaint. Complainant argues that this was direct evidence of retaliatory
animus and establishes he retaliated against her in the events that make up the current complaint.
Complainant assert s that that the AJ’s decision failed to acknowledge the admiss ion of reprisal
from the Microbiologist. First, we note that Complainant ’s allegation concerning the
Microbiologist’s alleged retaliatory comment is being adjudicated as part of another formal EEO
complaint (Agency No. ARS -2019- 00847, EEOC Case No. 410- 2020- 00326X ), now pending in
EEOC Appeal No. 2022003111. In the present case, we do not find that the evidence supports a determination that there was sufficient nexus between the purported July 2019 remark, even if
proven true, and the incidents that comprise this complaint.
7 2021003820
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFF IRM the
Agency's final order implementing the AJ’s summary judgment decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0920)
The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 impac t on the policies, practices, or
operations of the agency.
Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration . A pa rty shall have twenty
(20) calendar days from receipt of another party’s request for reconsideration withi n which to
submit a brief or statement in opposition. 29 C.F.R. § 1614.405; EEO Management Directive for
29 C.F.R. Part 1614 at Ch. 9 § VII.B (Aug. 5, 2015).
Complainant should submit his or her request for reconsideration, and any statement or brief in
support of his or her request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx
Alternatively, Complainant can submit her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commi ssion, via regular mail addressed to
P.O. Box 77960, Washington DC 20013, or by certified mail addressed to 131 M St. NE, Washington DC 20507. In the absence of a legible postmark, Complainant’s request to reconsider shall be deemed timely filed if OFO re ceives it by mail within five days of the
expiration of the applicable filing period. 29 C.F.R. § 1614.604.
The Agency’s request for reconsideration must be submitted in digital format via the EEOC’s
Federal Sector EEO Portal (FedSEP). 29 C.F.R. § 1614.403(g). Either party’s request or
statement or brief in opposition must also include proof of service on the other party, unless Complainant files her request via the EEO C Public Portal, in which case no proof of service is
required.
Failure to file within the 30- day time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request.
8 2021003820
Any supporting documentation must be submitted together with the reque st for reconsideration.
The Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. 29 C.F.R. § 1614.604(c).
COM PLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil a ction 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 na me 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 “depar tment” means the
national organization, and not the local office, facility, or depar tment 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
February 28, 2023
Date | [
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"Brandon v. U.S. Postal Serv., EEOC Appeal No. 0120080803 (July 24, 2009)",
"Moorman v. U.S. Postal Serv., EEOC Appeal No. 0120123527 (Jan. 31, 2013)",
"Yun C. v. Dep’t of Justice , EEOC Appeal No. 0120181140 (Nov. 6, 2018)",
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271 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01975304.txt | 01975304.txt | TXT | text/plain | 23,056 | June 14, 1999 | Appeal Number: s
Background:
On May 28, 1997, the agency informed the appellant that under EEOC
Regulations, an individual may not file both an EEO complaint and a
grievance on the same matter when the negotiated grievance procedure
permits individuals to raise employment discrimination allegations in
a grievance. See 29 C.F.R. §1614.301(a). The agency indicated that
for this reason, the agency's EEO Office did not fully investigate
the allegations of employment discrimination which the appellant had
raised in her February 16, 1997 correspondence to the agency's Chairman.
The agency represented, however, that the EEO Office had inquired into
the appellant's allegations. The agency indicated that the inquiry
did not result in a finding of discrimination. The agency represented,
however, that the EEO Office recommended that the Boston Regional Office
review certain management practices of the Boston North Field Office
and undertake initiatives designed to sensitize employees in the areas
of EEO and diversity.
The appellant timely appealed the agency's decision to the Commission,
contending that the agency had issued a final decision finding no
discrimination. The appellant also contends that she was led to
believe by the person assigned by the Chairman's Office to conduct the
"EEO investigation" that even though she did not personally originate
an EEO complaint, she could appeal any agency decision which resulted
from the investigator's findings.
The Commission repeatedly requested that the agency submit a copy of
the complaint records. The agency responded that the appellant had not
initiated the Part 1614 process by contacting a counselor and filing
a formal complaint with the agency. The agency also contended that
it had not issued a final agency decision in the matter. The agency
further represented that a pending negotiated grievance raised issues
of discrimination. The agency did not submit a copy of the grievance,
the collective bargaining agreement, or any of the other documents
referenced in its May 28, 1997 letter.
The appellant sought EEO counseling on December 10, 1997. On February
6, 1998, the appellant submitted to the agency a formal complaint
of discrimination based on her race (Black), color (dark brown), sex
(female), national origin (Haiti), and reprisal (prior EEO activity).
In her facsimile transmission, the appellant indicated that she had
received the notice of her right to file a complaint on January 23, 1998.
It appears that the receipt date was initially written "1/23/97" but
then changed to "1/23/98." Also enclosed was a January 15, 1998 letter
from the EEO Counselor enclosing a copy of the appellant's "Rights
and Responsibilities" and asking that the copy be signed and returned
to the Counselor. It appears that the appellant signed the copy, dated
it "1/23/97," and submitted it to the agency with her formal complaint.
The agency issued a decision dated February 6, 1998. The decision
held that the appellant's correspondence with agency officials in
January 1997 was sufficient to constitute EEO counselor contact and
the initiation of the EEO process. The decision noted, however, that
the appellant did not receive EEO counseling until December 10, 1997,
approximately 11 months later. The decision indicated that the appellant's
complaint alleged that the agency was continuously subjecting her to
acts of alleged harassment. The decision then defined nine examples
of harassment raised by the appellant's February 6, 1998 complaint.
The decision additionally referred to allegations of discriminatory
practices since 1993 as raised in the appellant's narrative complaint,
including unequal training and other matters not specifically defined
in the agency's decision. The decision accepted allegations 8 and 9 for
investigation. The decision dismissed allegations 1 through 7 for untimely
EEO counselor contact. The decision found that the appellant should
have suspected discrimination, and in fact did suspect discrimination,
as early as 1993, but did not seek counseling until December 10, 1997. The
Legal Analysis:
EEOC Regulation 29 C.F.R. §1614.107(b) and (d). The Commission
accepts the appellant's appeals in accordance with EEOC Order No. 960,
as amended, and consolidates the appeals pursuant to EEOC Regulation 29
C.F.R. §1614.606.
ISSUE PRESENTED
The issue presented in these appeals is whether the record contains
sufficient evidence for the Commission to render a decision on the
agency's dismissal of the appellant's allegations.
BACKGROUND
On May 28, 1997, the agency informed the appellant that under EEOC
Regulations, an individual may not file both an EEO complaint and a
grievance on the same matter when the negotiated grievance procedure
permits individuals to raise employment discrimination allegations in
a grievance. See 29 C.F.R. §1614.301(a). The agency indicated that
for this reason, the agency's EEO Office did not fully investigate
the allegations of employment discrimination which the appellant had
raised in her February 16, 1997 correspondence to the agency's Chairman.
The agency represented, however, that the EEO Office had inquired into
the appellant's allegations. The agency indicated that the inquiry
did not result in a finding of discrimination. The agency represented,
however, that the EEO Office recommended that the Boston Regional Office
review certain management practices of the Boston North Field Office
and undertake initiatives designed to sensitize employees in the areas
of EEO and diversity.
The appellant timely appealed the agency's decision to the Commission,
contending that the agency had issued a final decision finding no
discrimination. The appellant also contends that she was led to
believe by the person assigned by the Chairman's Office to conduct the
"EEO investigation" that even though she did not personally originate
an EEO complaint, she could appeal any agency decision which resulted
from the investigator's findings.
The Commission repeatedly requested that the agency submit a copy of
the complaint records. The agency responded that the appellant had not
initiated the Part 1614 process by contacting a counselor and filing
a formal complaint with the agency. The agency also contended that
it had not issued a final agency decision in the matter. The agency
further represented that a pending negotiated grievance raised issues
of discrimination. The agency did not submit a copy of the grievance,
the collective bargaining agreement, or any of the other documents
referenced in its May 28, 1997 letter.
The appellant sought EEO counseling on December 10, 1997. On February
6, 1998, the appellant submitted to the agency a formal complaint
of discrimination based on her race (Black), color (dark brown), sex
(female), national origin (Haiti), and reprisal (prior EEO activity).
In her facsimile transmission, the appellant indicated that she had
received the notice of her right to file a complaint on January 23, 1998.
It appears that the receipt date was initially written "1/23/97" but
then changed to "1/23/98." Also enclosed was a January 15, 1998 letter
from the EEO Counselor enclosing a copy of the appellant's "Rights
and Responsibilities" and asking that the copy be signed and returned
to the Counselor. It appears that the appellant signed the copy, dated
it "1/23/97," and submitted it to the agency with her formal complaint.
The agency issued a decision dated February 6, 1998. The decision
held that the appellant's correspondence with agency officials in
January 1997 was sufficient to constitute EEO counselor contact and
the initiation of the EEO process. The decision noted, however, that
the appellant did not receive EEO counseling until December 10, 1997,
approximately 11 months later. The decision indicated that the appellant's
complaint alleged that the agency was continuously subjecting her to
acts of alleged harassment. The decision then defined nine examples
of harassment raised by the appellant's February 6, 1998 complaint.
The decision additionally referred to allegations of discriminatory
practices since 1993 as raised in the appellant's narrative complaint,
including unequal training and other matters not specifically defined
in the agency's decision. The decision accepted allegations 8 and 9 for
investigation. The decision dismissed allegations 1 through 7 for untimely
EEO counselor contact. The decision found that the appellant should
have suspected discrimination, and in fact did suspect discrimination,
as early as 1993, but did not seek counseling until December 10, 1997. The
decision also found that the record revealed that the appellant had prior
notice of the 45-day time limitation for EEO counselor contact: (1) the
agency provided her a copy of 29 C.F.R. Part 1614 during the April 1997
inquiry which stemmed from the discrimination allegations the appellant
had raised with agency officials; (2) an EEO poster was conspicuously
displayed on an official bulletin board in the appellant's work area;
and (3) the agency's Bulletin 270 providing information on EEO policies
and procedures was issued to all employees on six occasions between
1991 and 1994. The agency held that the time limitation for seeking
EEO counseling was not tolled by the appellant's filing of grievances on
January 29, 1997, and September 18, 1997. Finally, the agency concluded
that the appellant had failed to present sufficient justification for
extending the 45-day time limit for EEO counselor contact.
On appeal the appellant contends that she tried to use the appropriate
process to seek redress but the agency ignored all of her complaints.
The appellant alleges that when she persisted in her efforts to seek
redress, she was treated disparately, including being denied pay raises
and training.
In response, the agency contends that the appellant suspected
discrimination but did not timely contact an EEO counselor. The agency
also contends that the appellant's allegations involve discrete
isolated events and do not fit the criteria for continuing violation
allegations. The agency further contends that the appellant has not
offered any explanation for her untimely EEO counselor contact despite
her having been informed of the time limit by several means including
her receipt of a statement of "Rights and Responsibilities" on January
23, 1997. In addition, the agency contends that allegations 3 and 4
are inextricably intertwined with the subject matter of her performance
appraisal grievance. The agency also contends that allegations 3,
4 and 5 fail to state a claim. Finally, the agency contends that the
appellant's promotion allegation has been subsumed with a class action
complaint that has been accepted by the agency.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. §1614.105(a)(1) requires that complaints
of discrimination be brought to the attention of the EEO Counselor
within forty-five (45) days of the date of the matter alleged to
be discriminatory or, in the case of a personnel action, within
forty-five days of the effective date of the action. Although careful
compliance with the time limits generally is required of parties alleging
discrimination, EEOC Regulation 29 C.F.R. §1614.105(a)(2) provides that
the forty-five-day period may be extended where the individual shows that
s/he was not notified of the time limit and was not otherwise aware of
it, that s/he did not know and reasonably should not have been aware
that the alleged discriminatory matter or personnel action occurred,
that despite due diligence s/he was prevented by circumstances beyond
his/her control from contacting an EEO Counselor within the time limit,
or for other reasons deemed sufficient by the agency or the Commission.
After a review of the record in the instant case, the Commission finds
that the record does not contain sufficient information for the Commission
to determine the timeliness of the appellant's allegations and whether
any of the allegations were first timely raised in a grievance process
which permits allegations of discrimination to be raised.
First, the record does not document when the appellant first raised
her allegations of discrimination with agency officials. The agency's
February 6, 1998 decision held that the appellant's correspondence
with agency officials in January 1997 was sufficient to constitute
EEO counselor contact and the initiation of the EEO process. However,
the record does not contain copies of the January 1997 correspondence.
The appellant apparently also wrote to the Chairman's Office in February
1997. The record also does not contain a copy of that correspondence.
Thus, the Commission also cannot determine what allegations the appellant
raised with agency officials in January and February 1997.
The record also does not contain any evidence demonstrating that
the agency officials who were contacted in January and February 1997
informed the appellant that she needed to contact an EEO counselor
about her allegations. In addition, it appears that the agency may
have led the appellant to believe that her initial contact with agency
officials was sufficient to initiate an EEO investigation in that the
agency represents that it did investigate the appellant's February 1997
discrimination allegations.
The principles of equitable tolling may be applied in Title VII cases
where the federal government is the defendant to the same degree that
they may be applied in cases where a private employer is the defendant.
Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-96 (1990).
Federal courts have allowed equitable tolling in situations where
the claimant has actively pursued his judicial remedies by filing a
defective pleading during the statutory period or where the complainant
has been induced or tricked by his adversary's misconduct into allowing
the filing deadline to pass. Id. at 94; Williams-Scaife v. Department
of Defense Dependent Schools, 925 Fd. 2d. 346, 347 (9th Cir. 1991).
Federal courts have also allowed equitable tolling where a claimant has
received inadequate notice, where a motion for appointment of counsel was
pending and equity would justify tolling the statutory period until the
motion was acted upon, where a court had led the plaintiff to believe that
she had done everything required of her and where there was affirmative
misconduct on the part of a defendant which had lulled the plaintiff
into inaction. Baldwin County Welcome Center v. Brown, 466 U.S. 147,
151 (1984).
The February 6, 1998 decision also represented that the record
demonstrates that the appellant had prior notice of the 45-day time
limitation for EEO counselor contact by three means: (1) the agency
provided her a copy of 29 C.F.R. Part 1614 during the April 1997 inquiry
which stemmed from the discrimination allegations the appellant had
raised with agency officials; (2) an EEO poster was conspicuously
displayed on an official bulletin board in the appellant's work area;
and (3) the agency's Bulletin 270 providing information on EEO policies
and procedures was issued to all employees on six occasions between 1991
and 1994. However, there is no evidence in the record which demonstrates
that the appellant had actual or constructive notice of the need to seek
EEO counseling within 45 days of the alleged discrimination.
In order to commence the running of the 45-day-limitations period for
requesting EEO counseling, the complainant must have either actual or
constructive knowledge of the time limit. York v. Department of Veterans
Affairs, EEOC Request No. 05940575 (November 3, 1994). The Commission has
held that a generalized affirmation that an agency posted EEO information,
without specific evidence that the poster actually contained notice of
the specified time limits, is insufficient to demonstrate constructive
knowledge of the time limits for EEO counselor contact. Pride v. United
States Postal Service, EEOC Request No. 05930134 (August 19, 1993)
(citing Polsby v. Shalala, 113 S. Ct. 1940 (1993), vacating and remanding
Polsby v. Chase, 970 F.2d 1360 (4th Cir. 1992).
On appeal the agency also contends that notice of the time limit is shown
by the appellant's receipt of a statement of "Rights and Responsibilities"
on January 23, 1997. However, it appears that the appellant may have
received the statement on January 23, 1998, but misdated it January 23,
1997.
As to the agency's alternative ground for dismissing some of the
appellant's complaint allegations, the record does not demonstrate whether
the appellant's grievances were raised in a grievance process which
permits allegations of discrimination to be raised. The record also
does not demonstrate that the appellant's grievances were accepted by
the agency as timely raised. In addition, the record does not contain
sufficient information for the Commission to determine whether the
appellant's grievances raised more than one of the allegations raised by
the discrimination complaint at issue. For example, the agency argues
on appeal that allegations 3 and 4 were inextricably intertwined with
the appellant's performance appraisal grievance. If so, that would
be documented in the agency's written responses to the appellant's
grievances. However, the record does not contain copies of the agency's
responses to the appellant's grievances.
The agency contends on appeal that the appellant's allegations involve
discrete isolated events which do not fit the criteria for continuing
violation allegations and/or which fail to state a claim. However, the
Commission observes that allegation 7 states a claim of on-going denial
of a career ladder promotion from the GS-9 level to the GS-11 level.
In addition, the appellant's allegations were presented as examples of the
on-going hostile work environment to which the appellant allegedly was
being subjected, rather than as separate allegations of discrimination.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997).
Finally, the agency contends on appeal that the appellant's promotion
allegation has been subsumed under a class action complaint that has been
accepted by the agency. However, there is no evidence in the record that
the proposed class has been certified as meeting all of the requirements
of a class complaint. | Sabine L. Philippe v. Federal Deposit Insurance Corporation
01975304
June 14, 1999
Sabine L. Philippe, )
Appellant, )
)
v. ) Appeal Nos. 01975304
) 01985591
Donna A. Tanoue, ) Agency No. 98-38P
Chairman, )
Federal Deposit Insurance )
Corporation, )
Agency. )
)
DECISION
The appellant timely filed appeals with this Commission from final
decisions, dated May 28, 1997 and June 12, 1998, which the agency issued
pursuant to EEOC Regulation 29 C.F.R. §1614.107(b) and (d). The Commission
accepts the appellant's appeals in accordance with EEOC Order No. 960,
as amended, and consolidates the appeals pursuant to EEOC Regulation 29
C.F.R. §1614.606.
ISSUE PRESENTED
The issue presented in these appeals is whether the record contains
sufficient evidence for the Commission to render a decision on the
agency's dismissal of the appellant's allegations.
BACKGROUND
On May 28, 1997, the agency informed the appellant that under EEOC
Regulations, an individual may not file both an EEO complaint and a
grievance on the same matter when the negotiated grievance procedure
permits individuals to raise employment discrimination allegations in
a grievance. See 29 C.F.R. §1614.301(a). The agency indicated that
for this reason, the agency's EEO Office did not fully investigate
the allegations of employment discrimination which the appellant had
raised in her February 16, 1997 correspondence to the agency's Chairman.
The agency represented, however, that the EEO Office had inquired into
the appellant's allegations. The agency indicated that the inquiry
did not result in a finding of discrimination. The agency represented,
however, that the EEO Office recommended that the Boston Regional Office
review certain management practices of the Boston North Field Office
and undertake initiatives designed to sensitize employees in the areas
of EEO and diversity.
The appellant timely appealed the agency's decision to the Commission,
contending that the agency had issued a final decision finding no
discrimination. The appellant also contends that she was led to
believe by the person assigned by the Chairman's Office to conduct the
"EEO investigation" that even though she did not personally originate
an EEO complaint, she could appeal any agency decision which resulted
from the investigator's findings.
The Commission repeatedly requested that the agency submit a copy of
the complaint records. The agency responded that the appellant had not
initiated the Part 1614 process by contacting a counselor and filing
a formal complaint with the agency. The agency also contended that
it had not issued a final agency decision in the matter. The agency
further represented that a pending negotiated grievance raised issues
of discrimination. The agency did not submit a copy of the grievance,
the collective bargaining agreement, or any of the other documents
referenced in its May 28, 1997 letter.
The appellant sought EEO counseling on December 10, 1997. On February
6, 1998, the appellant submitted to the agency a formal complaint
of discrimination based on her race (Black), color (dark brown), sex
(female), national origin (Haiti), and reprisal (prior EEO activity).
In her facsimile transmission, the appellant indicated that she had
received the notice of her right to file a complaint on January 23, 1998.
It appears that the receipt date was initially written "1/23/97" but
then changed to "1/23/98." Also enclosed was a January 15, 1998 letter
from the EEO Counselor enclosing a copy of the appellant's "Rights
and Responsibilities" and asking that the copy be signed and returned
to the Counselor. It appears that the appellant signed the copy, dated
it "1/23/97," and submitted it to the agency with her formal complaint.
The agency issued a decision dated February 6, 1998. The decision
held that the appellant's correspondence with agency officials in
January 1997 was sufficient to constitute EEO counselor contact and
the initiation of the EEO process. The decision noted, however, that
the appellant did not receive EEO counseling until December 10, 1997,
approximately 11 months later. The decision indicated that the appellant's
complaint alleged that the agency was continuously subjecting her to
acts of alleged harassment. The decision then defined nine examples
of harassment raised by the appellant's February 6, 1998 complaint.
The decision additionally referred to allegations of discriminatory
practices since 1993 as raised in the appellant's narrative complaint,
including unequal training and other matters not specifically defined
in the agency's decision. The decision accepted allegations 8 and 9 for
investigation. The decision dismissed allegations 1 through 7 for untimely
EEO counselor contact. The decision found that the appellant should
have suspected discrimination, and in fact did suspect discrimination,
as early as 1993, but did not seek counseling until December 10, 1997. The
decision also found that the record revealed that the appellant had prior
notice of the 45-day time limitation for EEO counselor contact: (1) the
agency provided her a copy of 29 C.F.R. Part 1614 during the April 1997
inquiry which stemmed from the discrimination allegations the appellant
had raised with agency officials; (2) an EEO poster was conspicuously
displayed on an official bulletin board in the appellant's work area;
and (3) the agency's Bulletin 270 providing information on EEO policies
and procedures was issued to all employees on six occasions between
1991 and 1994. The agency held that the time limitation for seeking
EEO counseling was not tolled by the appellant's filing of grievances on
January 29, 1997, and September 18, 1997. Finally, the agency concluded
that the appellant had failed to present sufficient justification for
extending the 45-day time limit for EEO counselor contact.
On appeal the appellant contends that she tried to use the appropriate
process to seek redress but the agency ignored all of her complaints.
The appellant alleges that when she persisted in her efforts to seek
redress, she was treated disparately, including being denied pay raises
and training.
In response, the agency contends that the appellant suspected
discrimination but did not timely contact an EEO counselor. The agency
also contends that the appellant's allegations involve discrete
isolated events and do not fit the criteria for continuing violation
allegations. The agency further contends that the appellant has not
offered any explanation for her untimely EEO counselor contact despite
her having been informed of the time limit by several means including
her receipt of a statement of "Rights and Responsibilities" on January
23, 1997. In addition, the agency contends that allegations 3 and 4
are inextricably intertwined with the subject matter of her performance
appraisal grievance. The agency also contends that allegations 3,
4 and 5 fail to state a claim. Finally, the agency contends that the
appellant's promotion allegation has been subsumed with a class action
complaint that has been accepted by the agency.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. §1614.105(a)(1) requires that complaints
of discrimination be brought to the attention of the EEO Counselor
within forty-five (45) days of the date of the matter alleged to
be discriminatory or, in the case of a personnel action, within
forty-five days of the effective date of the action. Although careful
compliance with the time limits generally is required of parties alleging
discrimination, EEOC Regulation 29 C.F.R. §1614.105(a)(2) provides that
the forty-five-day period may be extended where the individual shows that
s/he was not notified of the time limit and was not otherwise aware of
it, that s/he did not know and reasonably should not have been aware
that the alleged discriminatory matter or personnel action occurred,
that despite due diligence s/he was prevented by circumstances beyond
his/her control from contacting an EEO Counselor within the time limit,
or for other reasons deemed sufficient by the agency or the Commission.
After a review of the record in the instant case, the Commission finds
that the record does not contain sufficient information for the Commission
to determine the timeliness of the appellant's allegations and whether
any of the allegations were first timely raised in a grievance process
which permits allegations of discrimination to be raised.
First, the record does not document when the appellant first raised
her allegations of discrimination with agency officials. The agency's
February 6, 1998 decision held that the appellant's correspondence
with agency officials in January 1997 was sufficient to constitute
EEO counselor contact and the initiation of the EEO process. However,
the record does not contain copies of the January 1997 correspondence.
The appellant apparently also wrote to the Chairman's Office in February
1997. The record also does not contain a copy of that correspondence.
Thus, the Commission also cannot determine what allegations the appellant
raised with agency officials in January and February 1997.
The record also does not contain any evidence demonstrating that
the agency officials who were contacted in January and February 1997
informed the appellant that she needed to contact an EEO counselor
about her allegations. In addition, it appears that the agency may
have led the appellant to believe that her initial contact with agency
officials was sufficient to initiate an EEO investigation in that the
agency represents that it did investigate the appellant's February 1997
discrimination allegations.
The principles of equitable tolling may be applied in Title VII cases
where the federal government is the defendant to the same degree that
they may be applied in cases where a private employer is the defendant.
Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-96 (1990).
Federal courts have allowed equitable tolling in situations where
the claimant has actively pursued his judicial remedies by filing a
defective pleading during the statutory period or where the complainant
has been induced or tricked by his adversary's misconduct into allowing
the filing deadline to pass. Id. at 94; Williams-Scaife v. Department
of Defense Dependent Schools, 925 Fd. 2d. 346, 347 (9th Cir. 1991).
Federal courts have also allowed equitable tolling where a claimant has
received inadequate notice, where a motion for appointment of counsel was
pending and equity would justify tolling the statutory period until the
motion was acted upon, where a court had led the plaintiff to believe that
she had done everything required of her and where there was affirmative
misconduct on the part of a defendant which had lulled the plaintiff
into inaction. Baldwin County Welcome Center v. Brown, 466 U.S. 147,
151 (1984).
The February 6, 1998 decision also represented that the record
demonstrates that the appellant had prior notice of the 45-day time
limitation for EEO counselor contact by three means: (1) the agency
provided her a copy of 29 C.F.R. Part 1614 during the April 1997 inquiry
which stemmed from the discrimination allegations the appellant had
raised with agency officials; (2) an EEO poster was conspicuously
displayed on an official bulletin board in the appellant's work area;
and (3) the agency's Bulletin 270 providing information on EEO policies
and procedures was issued to all employees on six occasions between 1991
and 1994. However, there is no evidence in the record which demonstrates
that the appellant had actual or constructive notice of the need to seek
EEO counseling within 45 days of the alleged discrimination.
In order to commence the running of the 45-day-limitations period for
requesting EEO counseling, the complainant must have either actual or
constructive knowledge of the time limit. York v. Department of Veterans
Affairs, EEOC Request No. 05940575 (November 3, 1994). The Commission has
held that a generalized affirmation that an agency posted EEO information,
without specific evidence that the poster actually contained notice of
the specified time limits, is insufficient to demonstrate constructive
knowledge of the time limits for EEO counselor contact. Pride v. United
States Postal Service, EEOC Request No. 05930134 (August 19, 1993)
(citing Polsby v. Shalala, 113 S. Ct. 1940 (1993), vacating and remanding
Polsby v. Chase, 970 F.2d 1360 (4th Cir. 1992).
On appeal the agency also contends that notice of the time limit is shown
by the appellant's receipt of a statement of "Rights and Responsibilities"
on January 23, 1997. However, it appears that the appellant may have
received the statement on January 23, 1998, but misdated it January 23,
1997.
As to the agency's alternative ground for dismissing some of the
appellant's complaint allegations, the record does not demonstrate whether
the appellant's grievances were raised in a grievance process which
permits allegations of discrimination to be raised. The record also
does not demonstrate that the appellant's grievances were accepted by
the agency as timely raised. In addition, the record does not contain
sufficient information for the Commission to determine whether the
appellant's grievances raised more than one of the allegations raised by
the discrimination complaint at issue. For example, the agency argues
on appeal that allegations 3 and 4 were inextricably intertwined with
the appellant's performance appraisal grievance. If so, that would
be documented in the agency's written responses to the appellant's
grievances. However, the record does not contain copies of the agency's
responses to the appellant's grievances.
The agency contends on appeal that the appellant's allegations involve
discrete isolated events which do not fit the criteria for continuing
violation allegations and/or which fail to state a claim. However, the
Commission observes that allegation 7 states a claim of on-going denial
of a career ladder promotion from the GS-9 level to the GS-11 level.
In addition, the appellant's allegations were presented as examples of the
on-going hostile work environment to which the appellant allegedly was
being subjected, rather than as separate allegations of discrimination.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997).
Finally, the agency contends on appeal that the appellant's promotion
allegation has been subsumed under a class action complaint that has been
accepted by the agency. However, there is no evidence in the record that
the proposed class has been certified as meeting all of the requirements
of a class complaint.
CONCLUSION
For the reasons stated above, the Commission VACATES the agency's
dismissal of the appellant's February 6, 1998 complaint allegations and
REMANDS the complaint for processing as ORDERED below.
ORDER
The agency is ORDERED to supplement the record with all of the missing
documentation discussed in the decision above.
The agency also shall obtain and place in the record an affidavit from
the appellant describing the agency's representations regarding its
investigation of the discrimination allegations contained in her letter
to the Chairman. The affidavit shall also include information as to when
and how the appellant received actual or constructive notice of the EEO
process, including the 45-day limitation for EEO counselor contact.
The agency may supplement the record with any other evidence which
pertains to its grounds for dismissing the appellant's complaint
allegations.
The agency shall complete its supplementation of the record within 45
calendar days of the date this decision becomes final.
Within 60 calendar days of the date this decision becomes final, the
agency shall acknowledge to the appellant in writing that it intends to
process the remanded allegations in accordance with 29 C.F.R. §1614.108.
Alternatively, the agency may issue a new final agency decision dismissing
one or more of the remanded allegations if a dismissal is supported by
the supplemented record.
A copy of the agency's letter of acknowledgment to appellant and/or a
copy of the new final agency decision must be sent to the Compliance
Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. §1614.503 (a). The appellant 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. §§ 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. §§ 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. §1614.410.
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 (R0993)
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. 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:
June 14, 1999
______________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations | [
"York v. Department of Veterans Affairs, EEOC Request No. 05940575 (November 3, 1994)",
"Pride v. United States Postal Service, EEOC Request No. 05930134 (August 19, 1993)",
"Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997)",
"Scaife v. Department of Defense Dependent Schools, 92... | [
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0.08819109201431274,
0.012420263141393661,
-0.05830739066004753,
0.08198895305395126,
-0.002046104520559311,
0.09530658274888992,
0.06564342230558395,
0.029091032221913338,
0.03865756839513779,
0.08414950221776962,
-0.02922038733959198,
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272 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120103052.txt | 0120103052.txt | TXT | text/plain | 21,068 | Nannette F. Buckner, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, (Internal Revenue Service), Agency. | June 22, 2010 | Appeal Number: 0120103052
Background:
At the time of events giving rise to this complaint, Complainant had
a hearing pending before an EEOC AJ over events relating to a previous
town hall meeting with the Area Director.1 On February 10, 2010, the
Agency notified employees that they would have to attend another town
hall meeting with the Area Director, a meeting that would occur shortly
before Complainant's EEOC hearing. Complainant requested to be excused
from attending the second town hall meeting because (1) she feared the
Area Director would hold her to be insubordinate if she merely failed
to attend the town hall meeting; and (2) she felt publicly humiliated
at the first town hall meeting. Complainant's first-level supervisor,
however, denied her request on March 5, 2010. That same day, the Agency
cancelled the second town hall meeting.
According to Complainant, the AJ held a hearing on the earlier EEO
complaint on April 14, 2010.2 During the hearing, Complainant requested
to include a new, related claim of discrimination regarding the Agency's
attempt to force her to attend the second town hall meeting with the
Area Director. The AJ denied the request because it arose too late in
the hearing process and advised Complainant to contact an EEO counselor
in order to file a separate complaint.
According to Complainant, she telephoned an EEO counselor on April 16,
2010, but had her first conversation with an EEO counselor on April 20,
2010.3 (Formal Complaint) In an attachment to her formal complaint,
Complainant alleged that the Agency subjected her to retaliatory
harassment for prior protected EEO activity under an EEO statute that
was unspecified in the record when:
1. on February 10, 2010, the Agency notified employees of a mandatory
town hall meeting with the Area Director to take place at Complainant's
place of work on March 29, 2010;
2. on March 5, 2010, the Agency denied Complainant's request to be
excused from attending the town hall meeting.
In a May 27, 2010 letter to the Agency to explain how she was harmed,
Complainant further elaborated that the Area Director had previously
used town hall meetings as pretenses for trying to meet with Complainant
one-on-one after she had started pursuing an EEO complaint. Allegedly,
in an earlier town hall meeting, the Area Director had publicly asked
Complainant to stay behind after the town hall meeting to speak with
him, which she declined to do. And when the Area Director scheduled a
new mandatory town hall meeting to take place days before her hearing
with an EEOC AJ, Complainant believed that this was another attempt to
intimidate or dissuade her or her witnesses.
In its final decision, the Agency characterized the allegation as
follows:
Was Complainant subjected to retaliation for her prior EEO activity
when on March 5, 2010, her request not to attend a town hall meeting
with the Area Director was denied? (Final Agency Decision)
The Agency dismissed the complaint for failure to state a claim because:
(1) denying a request to not attend a town hall meeting does not
constitute an adverse employment action resulting in a harm or loss to
a term, condition, or privilege of employment; and (2) denying a request
to not attend a town hall meeting would not likely dissuade a reasonable
person from participating in the EEO complaint process.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency erred in dismissing the
claim in that the Agency failed to treat the claim as one incident in an
alleged pattern of retaliatory harassment relating back to the incidents
at the first town hall meeting. In her brief on appeal, Complainant
also references an allegation made in her previous complaint concerning
the Agency's failure to adopt and put in place the protections mandated
in EEOC Management Directive 715 (MD-715). Complainant attaches to
her appellate brief a copy of the motion for summary judgment that she
submitted to the AJ assigned to her previous EEO complaint. On page 7 of
her appeal in this case, Complainant requests that the MD-715 allegation
"be immediately processed as an active claim of harassment."
In opposition to Complainant's appeal, the Agency maintains that
Complainant failed to explain how she was harmed by the Agency's act of
requiring all employees to attend a second town hall meeting with the
Area Director that was later cancelled.
The Agency also now contends that Complainant failed to contact an EEO
counselor within 45 days of the events concerning the second town hall
meeting, even though in its final decision the Agency found the claim to
be timely raised to the AJ on April 14, 2010. Also inconsistent with
its final decision is the Agency's implicit acknowledgment that that
it had erred when it initially characterized Complainant's allegation.
Originally, the Agency identified the alleged adverse employment action
to be the Agency's March 5, 2010 denial of Complainant's request to
not attend the second town hall meeting. Now, the Agency argues that
what Complainant was actually alleging in her formal complaint was that
she was discriminated against when, on February 10, 2010, the Agency
scheduled and notified her of the second town hall meeting. And because
the EEO Counseling Report lists April 20, 2010 as the day Complainant
first sought counseling, Complainant exceeded the 45-day time period
for contacting an EEO counselor.
Finally, the Agency urges the Commission to not consider the MD-715 claim
here because it is not part of this complaint. In addition, the Agency
states that the AJ assigned to the previous EEO complaint orally denied
Complainant's motion for summary judgment with respect to the MD-715
claim.
Legal Analysis:
The Commission accepts Complainant's appeal from the Agency's decision
dated June 22, 2010, dismissing her complaint of unlawful employment
discrimination. For the following reasons, the Commission REVERSES the
agency's final decision.
ISSUES PRESENTED
1. Whether the Agency erred in dismissing the EEO complaint for failure
to state a claim when Complainant alleged a pattern of retaliatory
harassment by an agency official who (1) previously had tried to meet with
Complainant after a town hall meeting to discuss with her a pending EEO
complaint; (2) required Complainant to attend another town hall meeting,
which was later cancelled, days before a hearing presided by an EEOC
Administrative Judge (AJ).
2. Whether Complainant timely contacted an EEO counselor within 45 days
of at least one of the incidents Complainant cited as evidence in support
of her retaliatory harassment claim.
3. Whether it is appropriate for the Commission to consider Complainant's
claim that an EEOC Administrative Judge erred by denying her motion for
summary judgment in another case.
BACKGROUND
At the time of events giving rise to this complaint, Complainant had
a hearing pending before an EEOC AJ over events relating to a previous
town hall meeting with the Area Director.1 On February 10, 2010, the
Agency notified employees that they would have to attend another town
hall meeting with the Area Director, a meeting that would occur shortly
before Complainant's EEOC hearing. Complainant requested to be excused
from attending the second town hall meeting because (1) she feared the
Area Director would hold her to be insubordinate if she merely failed
to attend the town hall meeting; and (2) she felt publicly humiliated
at the first town hall meeting. Complainant's first-level supervisor,
however, denied her request on March 5, 2010. That same day, the Agency
cancelled the second town hall meeting.
According to Complainant, the AJ held a hearing on the earlier EEO
complaint on April 14, 2010.2 During the hearing, Complainant requested
to include a new, related claim of discrimination regarding the Agency's
attempt to force her to attend the second town hall meeting with the
Area Director. The AJ denied the request because it arose too late in
the hearing process and advised Complainant to contact an EEO counselor
in order to file a separate complaint.
According to Complainant, she telephoned an EEO counselor on April 16,
2010, but had her first conversation with an EEO counselor on April 20,
2010.3 (Formal Complaint) In an attachment to her formal complaint,
Complainant alleged that the Agency subjected her to retaliatory
harassment for prior protected EEO activity under an EEO statute that
was unspecified in the record when:
1. on February 10, 2010, the Agency notified employees of a mandatory
town hall meeting with the Area Director to take place at Complainant's
place of work on March 29, 2010;
2. on March 5, 2010, the Agency denied Complainant's request to be
excused from attending the town hall meeting.
In a May 27, 2010 letter to the Agency to explain how she was harmed,
Complainant further elaborated that the Area Director had previously
used town hall meetings as pretenses for trying to meet with Complainant
one-on-one after she had started pursuing an EEO complaint. Allegedly,
in an earlier town hall meeting, the Area Director had publicly asked
Complainant to stay behind after the town hall meeting to speak with
him, which she declined to do. And when the Area Director scheduled a
new mandatory town hall meeting to take place days before her hearing
with an EEOC AJ, Complainant believed that this was another attempt to
intimidate or dissuade her or her witnesses.
In its final decision, the Agency characterized the allegation as
follows:
Was Complainant subjected to retaliation for her prior EEO activity
when on March 5, 2010, her request not to attend a town hall meeting
with the Area Director was denied? (Final Agency Decision)
The Agency dismissed the complaint for failure to state a claim because:
(1) denying a request to not attend a town hall meeting does not
constitute an adverse employment action resulting in a harm or loss to
a term, condition, or privilege of employment; and (2) denying a request
to not attend a town hall meeting would not likely dissuade a reasonable
person from participating in the EEO complaint process.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency erred in dismissing the
claim in that the Agency failed to treat the claim as one incident in an
alleged pattern of retaliatory harassment relating back to the incidents
at the first town hall meeting. In her brief on appeal, Complainant
also references an allegation made in her previous complaint concerning
the Agency's failure to adopt and put in place the protections mandated
in EEOC Management Directive 715 (MD-715). Complainant attaches to
her appellate brief a copy of the motion for summary judgment that she
submitted to the AJ assigned to her previous EEO complaint. On page 7 of
her appeal in this case, Complainant requests that the MD-715 allegation
"be immediately processed as an active claim of harassment."
In opposition to Complainant's appeal, the Agency maintains that
Complainant failed to explain how she was harmed by the Agency's act of
requiring all employees to attend a second town hall meeting with the
Area Director that was later cancelled.
The Agency also now contends that Complainant failed to contact an EEO
counselor within 45 days of the events concerning the second town hall
meeting, even though in its final decision the Agency found the claim to
be timely raised to the AJ on April 14, 2010. Also inconsistent with
its final decision is the Agency's implicit acknowledgment that that
it had erred when it initially characterized Complainant's allegation.
Originally, the Agency identified the alleged adverse employment action
to be the Agency's March 5, 2010 denial of Complainant's request to
not attend the second town hall meeting. Now, the Agency argues that
what Complainant was actually alleging in her formal complaint was that
she was discriminated against when, on February 10, 2010, the Agency
scheduled and notified her of the second town hall meeting. And because
the EEO Counseling Report lists April 20, 2010 as the day Complainant
first sought counseling, Complainant exceeded the 45-day time period
for contacting an EEO counselor.
Finally, the Agency urges the Commission to not consider the MD-715 claim
here because it is not part of this complaint. In addition, the Agency
states that the AJ assigned to the previous EEO complaint orally denied
Complainant's motion for summary judgment with respect to the MD-715
claim.
ANALYSIS AND FINDINGS
Standard of Review
The Commission reviews de novo an agency's final decision that is
issued without a hearing under 29 C.F.R. § 1614.110(b). 29 C.F.R. §
1614.405(a).
"The de novo standard requires that the Commission examine the record
without regard to the factual and legal determinations of the previous
decision maker. . . . The Commission will review the documents,
statements, and testimony of record, including any timely and relevant
submissions of the parties, and . . . will issue its decision based on
the Commission's own assessment of the record and its interpretation
of the law." Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO MD-110), at 9-15 (Nov. 9, 1999).
MD-715 Claim
As a preliminary matter, we agree with the Agency that the MD-715 claim
should not be considered in this appeal because (1) it is not part of
the EEO complaint at issue here, and (2) the appeal of the MD-715 claim
is premature in that the AJ in that case has not yet decided this claim.
Complainant can file an appeal on this claim after either (1) the Agency
issues a final order that informs Complainant whether the Agency will
fully implement the AJ's decision regarding the previous complaint; or
(2) the AJ's decision regarding the previous complaint becomes the final
action of the Agency if the Agency does not issue a final order within
40 days of receipt of the AJ's decision.
Fragmentation and Timeliness
With respect to the EEO complaint at issue in this case, we first note
that the Agency fragmented Complainant's claim in its opposition brief by
failing to distinguish between the claim raised and the evidence (factual
information) she offered in support of that claim. EEO MD-110, at 5-5.
The legal claim here is retaliatory harassment in trying to require that
Complainant meet with her alleged harasser through town hall meetings.
In support of this claim, Complainant references the February 10,
2010 notification that attendance was mandatory and the March 5, 2010
notification that she would not be excused from the meeting. These two
incidents are evidence in support of Complainant's claim and should not
be considered as separate claims in and of themselves, which the Agency
appears to do in its opposition brief when it considers the February 10,
2010 notification to be the relevant incident.
One of the reasons the distinction between legal claims and supporting
evidence is important is because complainants frequently raise factual
incidents that occur outside of the 45-day time period for contacting an
EEO Counselor. EEO MD-110, at 5-7. In general, for a legal claim to be
timely raised, at least one of the incidents the Complainant cites as
evidence in support of her claim must have occurred within the 45-day
time period for contacting an EEO Counselor. Id. If the claim itself
is timely raised, the Agency must consider, at least as background,
all relevant evidence offered in support of a timely raised legal claim,
even if the evidence involves incidents that occurred outside the 45-day
time limit. EEO MD-110, at 5-8.
Here, we find that the claim was timely raised because at least one of
the incidents Complainant cites as evidence in support of her claim, the
March 5, 2010 denial of her request to not attend the town hall meeting,
occurred within the 45-day time period for contacting an EEO counselor.
When an AJ considers a motion to amend a complaint, and ultimately
"concludes that the new claim is not like or related to any claims pending
in the complaint, he/she should deny the motion and order the agency to
commence processing the new claim as a separate EEO complaint. The order
should instruct the agency that the filing date of the motion to amend the
complaint is the date to be used to determine if initial EEO counselor
contact was timely under 29 C.F.R. 1614.105(a)." . 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. | Nannette F. Buckner,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Appeal No. 0120103052
Agency No. IRS-10-0413-F
DECISION
The Commission accepts Complainant's appeal from the Agency's decision
dated June 22, 2010, dismissing her complaint of unlawful employment
discrimination. For the following reasons, the Commission REVERSES the
agency's final decision.
ISSUES PRESENTED
1. Whether the Agency erred in dismissing the EEO complaint for failure
to state a claim when Complainant alleged a pattern of retaliatory
harassment by an agency official who (1) previously had tried to meet with
Complainant after a town hall meeting to discuss with her a pending EEO
complaint; (2) required Complainant to attend another town hall meeting,
which was later cancelled, days before a hearing presided by an EEOC
Administrative Judge (AJ).
2. Whether Complainant timely contacted an EEO counselor within 45 days
of at least one of the incidents Complainant cited as evidence in support
of her retaliatory harassment claim.
3. Whether it is appropriate for the Commission to consider Complainant's
claim that an EEOC Administrative Judge erred by denying her motion for
summary judgment in another case.
BACKGROUND
At the time of events giving rise to this complaint, Complainant had
a hearing pending before an EEOC AJ over events relating to a previous
town hall meeting with the Area Director.1 On February 10, 2010, the
Agency notified employees that they would have to attend another town
hall meeting with the Area Director, a meeting that would occur shortly
before Complainant's EEOC hearing. Complainant requested to be excused
from attending the second town hall meeting because (1) she feared the
Area Director would hold her to be insubordinate if she merely failed
to attend the town hall meeting; and (2) she felt publicly humiliated
at the first town hall meeting. Complainant's first-level supervisor,
however, denied her request on March 5, 2010. That same day, the Agency
cancelled the second town hall meeting.
According to Complainant, the AJ held a hearing on the earlier EEO
complaint on April 14, 2010.2 During the hearing, Complainant requested
to include a new, related claim of discrimination regarding the Agency's
attempt to force her to attend the second town hall meeting with the
Area Director. The AJ denied the request because it arose too late in
the hearing process and advised Complainant to contact an EEO counselor
in order to file a separate complaint.
According to Complainant, she telephoned an EEO counselor on April 16,
2010, but had her first conversation with an EEO counselor on April 20,
2010.3 (Formal Complaint) In an attachment to her formal complaint,
Complainant alleged that the Agency subjected her to retaliatory
harassment for prior protected EEO activity under an EEO statute that
was unspecified in the record when:
1. on February 10, 2010, the Agency notified employees of a mandatory
town hall meeting with the Area Director to take place at Complainant's
place of work on March 29, 2010;
2. on March 5, 2010, the Agency denied Complainant's request to be
excused from attending the town hall meeting.
In a May 27, 2010 letter to the Agency to explain how she was harmed,
Complainant further elaborated that the Area Director had previously
used town hall meetings as pretenses for trying to meet with Complainant
one-on-one after she had started pursuing an EEO complaint. Allegedly,
in an earlier town hall meeting, the Area Director had publicly asked
Complainant to stay behind after the town hall meeting to speak with
him, which she declined to do. And when the Area Director scheduled a
new mandatory town hall meeting to take place days before her hearing
with an EEOC AJ, Complainant believed that this was another attempt to
intimidate or dissuade her or her witnesses.
In its final decision, the Agency characterized the allegation as
follows:
Was Complainant subjected to retaliation for her prior EEO activity
when on March 5, 2010, her request not to attend a town hall meeting
with the Area Director was denied? (Final Agency Decision)
The Agency dismissed the complaint for failure to state a claim because:
(1) denying a request to not attend a town hall meeting does not
constitute an adverse employment action resulting in a harm or loss to
a term, condition, or privilege of employment; and (2) denying a request
to not attend a town hall meeting would not likely dissuade a reasonable
person from participating in the EEO complaint process.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency erred in dismissing the
claim in that the Agency failed to treat the claim as one incident in an
alleged pattern of retaliatory harassment relating back to the incidents
at the first town hall meeting. In her brief on appeal, Complainant
also references an allegation made in her previous complaint concerning
the Agency's failure to adopt and put in place the protections mandated
in EEOC Management Directive 715 (MD-715). Complainant attaches to
her appellate brief a copy of the motion for summary judgment that she
submitted to the AJ assigned to her previous EEO complaint. On page 7 of
her appeal in this case, Complainant requests that the MD-715 allegation
"be immediately processed as an active claim of harassment."
In opposition to Complainant's appeal, the Agency maintains that
Complainant failed to explain how she was harmed by the Agency's act of
requiring all employees to attend a second town hall meeting with the
Area Director that was later cancelled.
The Agency also now contends that Complainant failed to contact an EEO
counselor within 45 days of the events concerning the second town hall
meeting, even though in its final decision the Agency found the claim to
be timely raised to the AJ on April 14, 2010. Also inconsistent with
its final decision is the Agency's implicit acknowledgment that that
it had erred when it initially characterized Complainant's allegation.
Originally, the Agency identified the alleged adverse employment action
to be the Agency's March 5, 2010 denial of Complainant's request to
not attend the second town hall meeting. Now, the Agency argues that
what Complainant was actually alleging in her formal complaint was that
she was discriminated against when, on February 10, 2010, the Agency
scheduled and notified her of the second town hall meeting. And because
the EEO Counseling Report lists April 20, 2010 as the day Complainant
first sought counseling, Complainant exceeded the 45-day time period
for contacting an EEO counselor.
Finally, the Agency urges the Commission to not consider the MD-715 claim
here because it is not part of this complaint. In addition, the Agency
states that the AJ assigned to the previous EEO complaint orally denied
Complainant's motion for summary judgment with respect to the MD-715
claim.
ANALYSIS AND FINDINGS
Standard of Review
The Commission reviews de novo an agency's final decision that is
issued without a hearing under 29 C.F.R. § 1614.110(b). 29 C.F.R. §
1614.405(a).
"The de novo standard requires that the Commission examine the record
without regard to the factual and legal determinations of the previous
decision maker. . . . The Commission will review the documents,
statements, and testimony of record, including any timely and relevant
submissions of the parties, and . . . will issue its decision based on
the Commission's own assessment of the record and its interpretation
of the law." Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO MD-110), at 9-15 (Nov. 9, 1999).
MD-715 Claim
As a preliminary matter, we agree with the Agency that the MD-715 claim
should not be considered in this appeal because (1) it is not part of
the EEO complaint at issue here, and (2) the appeal of the MD-715 claim
is premature in that the AJ in that case has not yet decided this claim.
Complainant can file an appeal on this claim after either (1) the Agency
issues a final order that informs Complainant whether the Agency will
fully implement the AJ's decision regarding the previous complaint; or
(2) the AJ's decision regarding the previous complaint becomes the final
action of the Agency if the Agency does not issue a final order within
40 days of receipt of the AJ's decision.
Fragmentation and Timeliness
With respect to the EEO complaint at issue in this case, we first note
that the Agency fragmented Complainant's claim in its opposition brief by
failing to distinguish between the claim raised and the evidence (factual
information) she offered in support of that claim. EEO MD-110, at 5-5.
The legal claim here is retaliatory harassment in trying to require that
Complainant meet with her alleged harasser through town hall meetings.
In support of this claim, Complainant references the February 10,
2010 notification that attendance was mandatory and the March 5, 2010
notification that she would not be excused from the meeting. These two
incidents are evidence in support of Complainant's claim and should not
be considered as separate claims in and of themselves, which the Agency
appears to do in its opposition brief when it considers the February 10,
2010 notification to be the relevant incident.
One of the reasons the distinction between legal claims and supporting
evidence is important is because complainants frequently raise factual
incidents that occur outside of the 45-day time period for contacting an
EEO Counselor. EEO MD-110, at 5-7. In general, for a legal claim to be
timely raised, at least one of the incidents the Complainant cites as
evidence in support of her claim must have occurred within the 45-day
time period for contacting an EEO Counselor. Id. If the claim itself
is timely raised, the Agency must consider, at least as background,
all relevant evidence offered in support of a timely raised legal claim,
even if the evidence involves incidents that occurred outside the 45-day
time limit. EEO MD-110, at 5-8.
Here, we find that the claim was timely raised because at least one of
the incidents Complainant cites as evidence in support of her claim, the
March 5, 2010 denial of her request to not attend the town hall meeting,
occurred within the 45-day time period for contacting an EEO counselor.
When an AJ considers a motion to amend a complaint, and ultimately
"concludes that the new claim is not like or related to any claims pending
in the complaint, he/she should deny the motion and order the agency to
commence processing the new claim as a separate EEO complaint. The order
should instruct the agency that the filing date of the motion to amend the
complaint is the date to be used to determine if initial EEO counselor
contact was timely under 29 C.F.R. 1614.105(a)." . 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 (M0610)
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), at 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
77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
__2/4/11________________
Date
1 The record includes Complainant's motion for summary judgment in that
proceeding, which listed the EEOC case number as 430-2009-00125X and
the Agency number as IRS-08-0514-F.
2 The record does not contain any documents or transcripts of the AJ's
rulings at the hearing. This decision's characterizations of the AJ's
rulings and rationales are based on what Complainant described in her
formal complaint, a May 27, 2010 letter to the Agency, her brief on
appeal, and the Agency's characterizations in its final decision.
3 The record includes an EEO Counseling Report listing April 20, 2010
as the date when Complainant first sought counseling.
??
??
??
??
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"29 C.F.R. § 1614.409",
"29 C.F.R. § 1614.405",
"29 C.F.R. § 1614.604",
"29 C.F.R. § 1614.604(c)",
"42 U.S.C. § 2000e",
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273 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/2019001451.pdf | 2019001451.pdf | PDF | application/pdf | 21,842 | Karl W.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. | November 16, 2018 | Appeal Number: s
Background:
At the time of events giving rise to this complaint, Complainant w orked as the Chief of
Cardiology at the Agency’s Medical Center in St. Louis, Missouri. Appeal No. 2019001448 – Agency Complaint No. 2003-0657-2013101575 (hereinafter referred to as “Complaint 1”)
On January 24, 2013, Complainant sought EEO counseling alleging that he was subjected to
unlawful retaliation for engaging in prior EEO activity . Infor mal efforts to resolve his concerns
were unsuccessful .
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
2019001448, 2019001451
On March 18, 2013, Com plainant filed a formal EEO complaint alleging that the Agency
unlawfully retaliated against him for engaging in prior protected EEO activity when:
1. on December 13, 2012, Compl ainant received a memorandum that he was being
detailed to another section for 120 days; and,
2. on December 13, 2012, Complainant was denied special pay (performance award)
due to negative comments on his performance appraisal.
On April 12, 2013, the Agenc y accepted Complaint 1 for investigation.
On May 7, 2013, Complainant amended his complaint to add the following issue to his
retaliation claim:
3. on April 16, 2013, Complainant’s part -time employment as a physician was
terminated.
The complaint as amended was accepted for investigation. The investigative record reflects the following pertinent evidence relating to the subject claims.
On May 4, 2004, Complainant was hired as a part -time physician with the Agency. Complainant
received an Outstanding rating for Fiscal Year (“FY”) 2007 and FY 2008. In FY 2009, 2010,
2011 and 2012, Complainant received ratings of Fully Successful. In FY 2012, the Acting Chief of Medicine was Complainant’s first line supervisor, and the Chief
of Staff was Complainant’s second line supervisor.
Around July 2012, a number of employees in the St. Louis Cardiology Department began to complain about Complainant’s managerial style and practices. The Chief of Staff verbally counseled Complainant on this matter. At some point betwe en October and December 11, 2012, Complainant contacted and met with
the EEO Specialist at the St. Louis Medical Center. The EEO Specialist was not an EEO counselor. The EEO Specialist testified that she shared information about Complainant’s visit with he r supervisor as was the standard protocol. Information regarding his meeting was not
shared outside of the EEO office. Prior to this, Complainant had not engaged in any EEO activity.
In early December 2012, following multiple reports of abusive behavior by Complainant and an
allegation of falsifying data, the Chief of Staff met with the Director of Quality and the Medical Center Director and asked that an Administrative Investigation Board (“AIB”) be convened. On December 12, 2012, the AIB was convened. O n December 13, 2012, Complainant was placed on
a 120- day detail while the AIB investigated (claim 1). The Chief of Staff testified that it was
standard procedure to detail an employee during a pending AIB.
2019001448, 2019001451
Complainant also asserted that in December 2012 he was discriminatorily denied a performance award due to his EEO activity (claim 2). The Chief of Staff stated that Complainant did not
receive a performance award because his performance rating (Fully Successful) did not meet the criteria for him to receive such a reward. The Acting Chief of Medicine stated that the performance rating that she provided to Complainant was strictly based on performance metrics and had nothing to do with Complainant’s EEO activity. Additionally, the Acting Chief of Medicine n oted that while Complainant did not receive a performance award, he did receive
performance pay of $9,240. On January 10, 2013, Complainant’s attorney sent a letter to the Acting Chief of Medicine that certain actions were taken due to Complainant’s EEO activity. The letter was received on
January 17, 2013.
On January 24, 2013, Complainant made initial contact with an EEO Counselor regarding Complaint 1 , and later filed his formal complaint on March 13, 2013.
On February 27, 2013, the AIB issued a me morandum of findings. The AIB determined that
Complainant “frequently uses loud and abrasive language when dealing with employees”, “consistently threatens them with termination of employment”, and, that his “communication style is a pattern that has exist ed for years”. The AIB report did not substantiate the allegation
that Complainant had falsified date in relation to telemetry errors.
On April 9, 2013, the Chief of Staff recommended to the Medical Center Director that Complainant’s part -time employment be terminated. On April 10, 2013, the Medical Center
Director issued Complainant’s termination letter (claim 3). The Medical Center Director considered input from the Chief of Staff, general staff, and the AIB report in issuing the termination letter. The Medical Center Director stated that Complainant was terminated because
he had a pattern of creating a hostile work environment for staff, and that it was unlikely that his
behavior would change with trainings or interventions. On April 16, 2013, Complaina nt’s
position as a part -time physician was terminated effective April 19, 2013.
Appeal No. 2019001451 – Agency Complaint No. 2003- 0609- 2013103545
(hereinafter referred to as “Complaint 2”)
On or about June 10, 2013, Complainant sought EEO counseling in a second complaint. On July 24, 2013, Complainant filed his second EEO complaint alleging that the Agency
retaliated against him for his prior EEO activity when:
4. on or about May 3, 2013, Complainant became aware that he was removed from consideration f or employment for a physician position and subsequently was not
hired.
2019001448, 2019001451
Complaint 2 was accepted for investigation.
The investigation showed that on January 31, 2013, the Agency issued Vacancy Announcement MRN -T38-13834773 seeking to fill two Cardiology physician positions at the Marion, Illinois
facility. The announcement was open from January 31, 2013 to March 29, 2013. The selecting official for the vacancies at the Marion facility was a Cardiologist (hereinafter referred to as “the Cardiologist”).
On April 25, 2013, Complainant contacted the Cardiologist to inquire about working at the
Marion, Illinois Medical Center (claim 4). The Cardiologist presumed Complainant was seeking a transfer (although he had been terminated at the time) and forwarded Com plainant’s resume to
the Administrative Officer for Medicine Service. On or about April 30, 2013, the Cardiologist contacted the St. Louis Chief of Staff. The Chief of Staff confirmed Complainant’s employments
dates, and when pressed for more information, recommended that the Cardiologist do “due diligence” in the hiring process. There is no evidence that the Cardiologist was told about
Complainant’s termination.
On or about May 3, 2013, the Cardiologist advised Complainant to officially apply for the
position through USAJobs. At the time, the Cardiologist was unaware that the vacancy had
already closed. It is undisputed that Complainant did not officially apply through USAJobs. As a
result, he was not considered for the position.
Hearing Following the Agency’s investigations into both complaints, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ consolidated the two complaints for hearing .
On June 11 and 12, 2018, the AJ held a hearing. On October 5, 2018, the AJ issued a final
Legal Analysis:
the Commission’s website.
2019001448, 2019001451
On March 18, 2013, Com plainant filed a formal EEO complaint alleging that the Agency
unlawfully retaliated against him for engaging in prior protected EEO activity when:
1. on December 13, 2012, Compl ainant received a memorandum that he was being
detailed to another section for 120 days; and,
2. on December 13, 2012, Complainant was denied special pay (performance award)
due to negative comments on his performance appraisal.
On April 12, 2013, the Agenc y accepted Complaint 1 for investigation.
On May 7, 2013, Complainant amended his complaint to add the following issue to his
retaliation claim:
3. on April 16, 2013, Complainant’s part -time employment as a physician was
terminated.
The complaint as amended was accepted for investigation. The investigative record reflects the following pertinent evidence relating to the subject claims.
On May 4, 2004, Complainant was hired as a part -time physician with the Agency. Complainant
received an Outstanding rating for Fiscal Year (“FY”) 2007 and FY 2008. In FY 2009, 2010,
2011 and 2012, Complainant received ratings of Fully Successful. In FY 2012, the Acting Chief of Medicine was Complainant’s first line supervisor, and the Chief
of Staff was Complainant’s second line supervisor.
Around July 2012, a number of employees in the St. Louis Cardiology Department began to complain about Complainant’s managerial style and practices. The Chief of Staff verbally counseled Complainant on this matter. At some point betwe en October and December 11, 2012, Complainant contacted and met with
the EEO Specialist at the St. Louis Medical Center. The EEO Specialist was not an EEO counselor. The EEO Specialist testified that she shared information about Complainant’s visit with he r supervisor as was the standard protocol. Information regarding his meeting was not
shared outside of the EEO office. Prior to this, Complainant had not engaged in any EEO activity.
In early December 2012, following multiple reports of abusive behavior by Complainant and an
allegation of falsifying data, the Chief of Staff met with the Director of Quality and the Medical Center Director and asked that an Administrative Investigation Board (“AIB”) be convened. On December 12, 2012, the AIB was convened. O n December 13, 2012, Complainant was placed on
a 120- day detail while the AIB investigated (claim 1). The Chief of Staff testified that it was
standard procedure to detail an employee during a pending AIB.
2019001448, 2019001451
Complainant also asserted that in December 2012 he was discriminatorily denied a performance award due to his EEO activity (claim 2). The Chief of Staff stated that Complainant did not
receive a performance award because his performance rating (Fully Successful) did not meet the criteria for him to receive such a reward. The Acting Chief of Medicine stated that the performance rating that she provided to Complainant was strictly based on performance metrics and had nothing to do with Complainant’s EEO activity. Additionally, the Acting Chief of Medicine n oted that while Complainant did not receive a performance award, he did receive
performance pay of $9,240. On January 10, 2013, Complainant’s attorney sent a letter to the Acting Chief of Medicine that certain actions were taken due to Complainant’s EEO activity. The letter was received on
January 17, 2013.
On January 24, 2013, Complainant made initial contact with an EEO Counselor regarding Complaint 1 , and later filed his formal complaint on March 13, 2013.
On February 27, 2013, the AIB issued a me morandum of findings. The AIB determined that
Complainant “frequently uses loud and abrasive language when dealing with employees”, “consistently threatens them with termination of employment”, and, that his “communication style is a pattern that has exist ed for years”. The AIB report did not substantiate the allegation
that Complainant had falsified date in relation to telemetry errors.
On April 9, 2013, the Chief of Staff recommended to the Medical Center Director that Complainant’s part -time employment be terminated. On April 10, 2013, the Medical Center
Director issued Complainant’s termination letter (claim 3). The Medical Center Director considered input from the Chief of Staff, general staff, and the AIB report in issuing the termination letter. The Medical Center Director stated that Complainant was terminated because
he had a pattern of creating a hostile work environment for staff, and that it was unlikely that his
behavior would change with trainings or interventions. On April 16, 2013, Complaina nt’s
position as a part -time physician was terminated effective April 19, 2013.
Appeal No. 2019001451 – Agency Complaint No. 2003- 0609- 2013103545
(hereinafter referred to as “Complaint 2”)
On or about June 10, 2013, Complainant sought EEO counseling in a second complaint. On July 24, 2013, Complainant filed his second EEO complaint alleging that the Agency
retaliated against him for his prior EEO activity when:
4. on or about May 3, 2013, Complainant became aware that he was removed from consideration f or employment for a physician position and subsequently was not
hired.
2019001448, 2019001451
Complaint 2 was accepted for investigation.
The investigation showed that on January 31, 2013, the Agency issued Vacancy Announcement MRN -T38-13834773 seeking to fill two Cardiology physician positions at the Marion, Illinois
facility. The announcement was open from January 31, 2013 to March 29, 2013. The selecting official for the vacancies at the Marion facility was a Cardiologist (hereinafter referred to as “the Cardiologist”).
On April 25, 2013, Complainant contacted the Cardiologist to inquire about working at the
Marion, Illinois Medical Center (claim 4). The Cardiologist presumed Complainant was seeking a transfer (although he had been terminated at the time) and forwarded Com plainant’s resume to
the Administrative Officer for Medicine Service. On or about April 30, 2013, the Cardiologist contacted the St. Louis Chief of Staff. The Chief of Staff confirmed Complainant’s employments
dates, and when pressed for more information, recommended that the Cardiologist do “due diligence” in the hiring process. There is no evidence that the Cardiologist was told about
Complainant’s termination.
On or about May 3, 2013, the Cardiologist advised Complainant to officially apply for the
position through USAJobs. At the time, the Cardiologist was unaware that the vacancy had
already closed. It is undisputed that Complainant did not officially apply through USAJobs. As a
result, he was not considered for the position.
Hearing Following the Agency’s investigations into both complaints, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ consolidated the two complaints for hearing .
On June 11 and 12, 2018, the AJ held a hearing. On October 5, 2018, the AJ issued a final
decision concluding Complainant failed to prove unlawful retaliation with regard to any of the
four issues . The AJ determined that the Agency initiated the AIB prior to any responsible
management official having knowledge of Com plainant’s alleged E EO activity. Further, the
detail was based on the AIB as standard protocol , and Complainant’s subsequent removal was a
consequence of the AIB findings. The AJ determined the evidence showed that none of the
responsible management offici als were aware of Co mplainant’s EEO office visit un til after the
AIB was initiated . Regarding the performance award , the AJ determined that there was no
indication that this was the result of his EEO activity rather than his rating on his annual
performance appraisal . Regardi ng the termination, the AJ determined that there was no evidence
of a nexus between the termination and the EEO activity and the termination decision was based
on the findings of the AIB . Lastly, it was undisputed that Complainant failed to officially appl y
for the Marion, Illinois Medical Center Cardiologist position. Therefore, the AJ determined that
there was no evidence that Complainant was discriminatorily r emoved from consideration based
on his EEO activity.
2019001448, 2019001451
Based on evidence of record and the hearing, the AJ concluded that Complainant did not prove,
by a preponderance of the evidence, that he was subjected to unlawful retaliation for his prior
EEO activity.
On October 17, 2018, the Agency issued a final order adopting the AJ’s finding that Complai nant failed to prove his claim of retaliation. The instant appeal followed.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. § 1614.405(a), all post -hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substa ntial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a | Karl W.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No s. 2019001448 and 2019001451
Hearing No. 560-2014-00071X
Agency No s. 2003-0609-2013103545 and 2003-0657-2013101575
DECISION
On November 16, 2018, Complainant filed appeals with the Equal Employment Opp ortunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
October 17, 2018 final order concerning his two equal employment opportunity (EEO)
complaints alleging employment discrimination in violation of Title VII of the Civil Rights Act
of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant w orked as the Chief of
Cardiology at the Agency’s Medical Center in St. Louis, Missouri. Appeal No. 2019001448 – Agency Complaint No. 2003-0657-2013101575 (hereinafter referred to as “Complaint 1”)
On January 24, 2013, Complainant sought EEO counseling alleging that he was subjected to
unlawful retaliation for engaging in prior EEO activity . Infor mal efforts to resolve his concerns
were unsuccessful .
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
2019001448, 2019001451
On March 18, 2013, Com plainant filed a formal EEO complaint alleging that the Agency
unlawfully retaliated against him for engaging in prior protected EEO activity when:
1. on December 13, 2012, Compl ainant received a memorandum that he was being
detailed to another section for 120 days; and,
2. on December 13, 2012, Complainant was denied special pay (performance award)
due to negative comments on his performance appraisal.
On April 12, 2013, the Agenc y accepted Complaint 1 for investigation.
On May 7, 2013, Complainant amended his complaint to add the following issue to his
retaliation claim:
3. on April 16, 2013, Complainant’s part -time employment as a physician was
terminated.
The complaint as amended was accepted for investigation. The investigative record reflects the following pertinent evidence relating to the subject claims.
On May 4, 2004, Complainant was hired as a part -time physician with the Agency. Complainant
received an Outstanding rating for Fiscal Year (“FY”) 2007 and FY 2008. In FY 2009, 2010,
2011 and 2012, Complainant received ratings of Fully Successful. In FY 2012, the Acting Chief of Medicine was Complainant’s first line supervisor, and the Chief
of Staff was Complainant’s second line supervisor.
Around July 2012, a number of employees in the St. Louis Cardiology Department began to complain about Complainant’s managerial style and practices. The Chief of Staff verbally counseled Complainant on this matter. At some point betwe en October and December 11, 2012, Complainant contacted and met with
the EEO Specialist at the St. Louis Medical Center. The EEO Specialist was not an EEO counselor. The EEO Specialist testified that she shared information about Complainant’s visit with he r supervisor as was the standard protocol. Information regarding his meeting was not
shared outside of the EEO office. Prior to this, Complainant had not engaged in any EEO activity.
In early December 2012, following multiple reports of abusive behavior by Complainant and an
allegation of falsifying data, the Chief of Staff met with the Director of Quality and the Medical Center Director and asked that an Administrative Investigation Board (“AIB”) be convened. On December 12, 2012, the AIB was convened. O n December 13, 2012, Complainant was placed on
a 120- day detail while the AIB investigated (claim 1). The Chief of Staff testified that it was
standard procedure to detail an employee during a pending AIB.
2019001448, 2019001451
Complainant also asserted that in December 2012 he was discriminatorily denied a performance award due to his EEO activity (claim 2). The Chief of Staff stated that Complainant did not
receive a performance award because his performance rating (Fully Successful) did not meet the criteria for him to receive such a reward. The Acting Chief of Medicine stated that the performance rating that she provided to Complainant was strictly based on performance metrics and had nothing to do with Complainant’s EEO activity. Additionally, the Acting Chief of Medicine n oted that while Complainant did not receive a performance award, he did receive
performance pay of $9,240. On January 10, 2013, Complainant’s attorney sent a letter to the Acting Chief of Medicine that certain actions were taken due to Complainant’s EEO activity. The letter was received on
January 17, 2013.
On January 24, 2013, Complainant made initial contact with an EEO Counselor regarding Complaint 1 , and later filed his formal complaint on March 13, 2013.
On February 27, 2013, the AIB issued a me morandum of findings. The AIB determined that
Complainant “frequently uses loud and abrasive language when dealing with employees”, “consistently threatens them with termination of employment”, and, that his “communication style is a pattern that has exist ed for years”. The AIB report did not substantiate the allegation
that Complainant had falsified date in relation to telemetry errors.
On April 9, 2013, the Chief of Staff recommended to the Medical Center Director that Complainant’s part -time employment be terminated. On April 10, 2013, the Medical Center
Director issued Complainant’s termination letter (claim 3). The Medical Center Director considered input from the Chief of Staff, general staff, and the AIB report in issuing the termination letter. The Medical Center Director stated that Complainant was terminated because
he had a pattern of creating a hostile work environment for staff, and that it was unlikely that his
behavior would change with trainings or interventions. On April 16, 2013, Complaina nt’s
position as a part -time physician was terminated effective April 19, 2013.
Appeal No. 2019001451 – Agency Complaint No. 2003- 0609- 2013103545
(hereinafter referred to as “Complaint 2”)
On or about June 10, 2013, Complainant sought EEO counseling in a second complaint. On July 24, 2013, Complainant filed his second EEO complaint alleging that the Agency
retaliated against him for his prior EEO activity when:
4. on or about May 3, 2013, Complainant became aware that he was removed from consideration f or employment for a physician position and subsequently was not
hired.
2019001448, 2019001451
Complaint 2 was accepted for investigation.
The investigation showed that on January 31, 2013, the Agency issued Vacancy Announcement MRN -T38-13834773 seeking to fill two Cardiology physician positions at the Marion, Illinois
facility. The announcement was open from January 31, 2013 to March 29, 2013. The selecting official for the vacancies at the Marion facility was a Cardiologist (hereinafter referred to as “the Cardiologist”).
On April 25, 2013, Complainant contacted the Cardiologist to inquire about working at the
Marion, Illinois Medical Center (claim 4). The Cardiologist presumed Complainant was seeking a transfer (although he had been terminated at the time) and forwarded Com plainant’s resume to
the Administrative Officer for Medicine Service. On or about April 30, 2013, the Cardiologist contacted the St. Louis Chief of Staff. The Chief of Staff confirmed Complainant’s employments
dates, and when pressed for more information, recommended that the Cardiologist do “due diligence” in the hiring process. There is no evidence that the Cardiologist was told about
Complainant’s termination.
On or about May 3, 2013, the Cardiologist advised Complainant to officially apply for the
position through USAJobs. At the time, the Cardiologist was unaware that the vacancy had
already closed. It is undisputed that Complainant did not officially apply through USAJobs. As a
result, he was not considered for the position.
Hearing Following the Agency’s investigations into both complaints, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ consolidated the two complaints for hearing .
On June 11 and 12, 2018, the AJ held a hearing. On October 5, 2018, the AJ issued a final
decision concluding Complainant failed to prove unlawful retaliation with regard to any of the
four issues . The AJ determined that the Agency initiated the AIB prior to any responsible
management official having knowledge of Com plainant’s alleged E EO activity. Further, the
detail was based on the AIB as standard protocol , and Complainant’s subsequent removal was a
consequence of the AIB findings. The AJ determined the evidence showed that none of the
responsible management offici als were aware of Co mplainant’s EEO office visit un til after the
AIB was initiated . Regarding the performance award , the AJ determined that there was no
indication that this was the result of his EEO activity rather than his rating on his annual
performance appraisal . Regardi ng the termination, the AJ determined that there was no evidence
of a nexus between the termination and the EEO activity and the termination decision was based
on the findings of the AIB . Lastly, it was undisputed that Complainant failed to officially appl y
for the Marion, Illinois Medical Center Cardiologist position. Therefore, the AJ determined that
there was no evidence that Complainant was discriminatorily r emoved from consideration based
on his EEO activity.
2019001448, 2019001451
Based on evidence of record and the hearing, the AJ concluded that Complainant did not prove,
by a preponderance of the evidence, that he was subjected to unlawful retaliation for his prior
EEO activity.
On October 17, 2018, the Agency issued a final order adopting the AJ’s finding that Complai nant failed to prove his claim of retaliation. The instant appeal followed.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. § 1614.405(a), all post -hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substa ntial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board
, 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whethe r or not discriminatory intent existed is a factual finding.
See Pullman -Standard Co. v. Swint , 456 U.S. 273, 293 (1982). An AJ's conclusions of law are
subject to a de novo standard of review, whether or not a hearing was held.
A claim of disparate treatment is examined under the three -part analysis first enunciated in
McDonnell Douglas Corporation v. Green
, 411 U.S. 792 (1973). For complainant to prevail, he
must first establish a prima facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e. , that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas , 411 U.S. at 802; Furnco
Construction Corp. v. Waters , 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine , 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant be ars the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks , 509 U.S. 502 (1993).
We find that substantial evidence of re cord, developed during the investigation and the hearing,
supports the AJ’s decision that Complainant failed to prove his retaliation claim. T he weight of
the evidence establishes that there were legitimate, non -retaliatory reasons for the disputed
action s. Specifically, in early December 2012, due to multiple reports from staff of abusive
behavior and an al legation of falsifying data, management decided to convene an Administrative
Investigation Board (“AIB”) to investigate the matter. Standard protocol dictated that
Complainant be placed on a detail while the AIB investigated the allegations (claim 1). There was no change to Complainant’s pay or benefits at this time . While the timing of the AIB
investigation, and detail were close in proximity to Complai nant’s visit to the Agency’s EEO
office (his only prior protected activity) , there is no evidence that any of the responsible
management officials were aware of such a visit at the time the AIB was convened.
2019001448, 2019001451
Regarding Complainant’s alleged denial of a performance award (claim 2), there is also no
evidence of a nexus between Complainant’s alleged denial of pay and his EEO activity. We note
that awards were based on Complainant’s performance appraisal rating, and his rating of Fully Successful did not war rant an award under established Agency policy. Significantly,
Complainant had received the same Fully Successful rating on his performance appraisal for the
three prior years (2009 – 2011), long before his EEO activity. Additionally, while Complainant
did not receive a performance award, he did receive performance pay of $9,240 for 2012.
Regarding the termination, we also agree with the AJ that there was no evidence of a nexus between the termination and the EEO activity. While the close proximity betwe en Complainant’s
filing of Complaint 1 and his termination create an initial inference that retaliatory animus may have been in play, ultimately the evidence does not establish unlawful retaliation. W e agree with
the AJ that Complainant’s termination was legitimate given the circumstances and the AIB
investigation (claim 3). The weight of the evidence establishes that the decision to terminate
Complain ant’s employment was based strictly on the results of the AIB investigation convened
before any knowledge of Complainant’s EEO activity . Complainant argues that the evidence of
retaliation regarding his termination is that the AIB recommended that he participate in a counseling program, not that he be terminated. However, the Director, who was the official w ho
made the decision to terminate Complainant, testified at the hearing that she based her decision to terminate on the AIB ’s report that he had created a hostile work environment for staff working
for him and she believed that when “employees do not feel that they are working in a psychologically safe environment, bad things happen to patients .” She also noted that the AIB
findings led her to believe that Complainant’s negative management style had continued for years and was unlikely to change. Complaina nt himself acknowledged that his management style
was consistent for thirty years.
Lastly, it was undisputed that Complainant did not formally apply for the Marion, Illinois
Cardiology positions through USAJobs (claim 4) . Complainant argued that his effor ts to find
employment elsewhere w ere obstructed by St. Louis management in retaliation for his EEO
activity. However, aside from his pure conjecture, there is no evidence of this. The Cardiologist testified that nothing negative was said of Complainant’s w ork, and that he did not take the Chief
of Staff’s comment of “due diligence” to have any negative references. The Cardiologist further testified that he was still interested in hiring Complainant and reminded Complainant to
officially apply. There is simp ly no evidence to suggest that Complainant’s non- selection was
due to anything other than his own failure to submit an application through USAJobs. While
Complainant provided testimony that the Agency did not have to hire for physician positions
through t he USAJobs competitive process, that does not change the fact that the Marion
management, who had no knowledge of Complainant’s EEO activity, legitimately had chosen to do so.
2019001448, 2019001451
In sum, we conclude the AJ’s decision is well- reasoned and fully supported by substantial
evidence developed during the investigation and hearing.2 We have reviewed the appellate
arguments advanced by Complainant. However, we determine that Complainant has offered no
persuasive arguments on appeal regarding the AJ’s conclusions on the merits of his claims .
As a final matter, at the end of his brief of appeal, Complainant argues that the AJ erred in not
further sanctioning the Agency for its alleged failure to fully respond to discovery. Our review
of the record shows that the par ties engaged in a robust exchange of motions and arguments
before the AJ on a variety of discovery issues , with the AJ exhibiting full control of the
discovery process through the issuance of various orders. We conclude that there is an insufficient basis to find that the AJ abused her discretion in these matters.
CONCLUSION
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Commission to AFFIRM the Agency’s final decisi on
implementing the AJ’s finding of no discrimination because the preponderance of the evidence of record does not establish that unlawful retaliation occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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 thi rty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See
29 C.F.R. § 1614.405;
Equal Employ ment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD -110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507.
2 While on appeal, Complainant identifies several factual errors in the AJ’s decision, we
conclude that these errors do not impact our conclusions of law in this case.
2019001448, 2019001451
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 agency’s request must be submitted in digital format via the EEOC’s Federal
Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The r equest 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).
COMPLAI NANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
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 a s 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 “departmen t” 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMI SSION:
______________________________ Carlton M
Carlton M. Hadden, Director
Office of Federal Operations
July 30, 2019
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274 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/2019001448.pdf | 2019001448.pdf | PDF | application/pdf | 21,842 | Karl W.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. | November 16, 2018 | Appeal Number: s
Background:
At the time of events giving rise to this complaint, Complainant w orked as the Chief of
Cardiology at the Agency’s Medical Center in St. Louis, Missouri. Appeal No. 2019001448 – Agency Complaint No. 2003-0657-2013101575 (hereinafter referred to as “Complaint 1”)
On January 24, 2013, Complainant sought EEO counseling alleging that he was subjected to
unlawful retaliation for engaging in prior EEO activity . Infor mal efforts to resolve his concerns
were unsuccessful .
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
2019001448, 2019001451
On March 18, 2013, Com plainant filed a formal EEO complaint alleging that the Agency
unlawfully retaliated against him for engaging in prior protected EEO activity when:
1. on December 13, 2012, Compl ainant received a memorandum that he was being
detailed to another section for 120 days; and,
2. on December 13, 2012, Complainant was denied special pay (performance award)
due to negative comments on his performance appraisal.
On April 12, 2013, the Agenc y accepted Complaint 1 for investigation.
On May 7, 2013, Complainant amended his complaint to add the following issue to his
retaliation claim:
3. on April 16, 2013, Complainant’s part -time employment as a physician was
terminated.
The complaint as amended was accepted for investigation. The investigative record reflects the following pertinent evidence relating to the subject claims.
On May 4, 2004, Complainant was hired as a part -time physician with the Agency. Complainant
received an Outstanding rating for Fiscal Year (“FY”) 2007 and FY 2008. In FY 2009, 2010,
2011 and 2012, Complainant received ratings of Fully Successful. In FY 2012, the Acting Chief of Medicine was Complainant’s first line supervisor, and the Chief
of Staff was Complainant’s second line supervisor.
Around July 2012, a number of employees in the St. Louis Cardiology Department began to complain about Complainant’s managerial style and practices. The Chief of Staff verbally counseled Complainant on this matter. At some point betwe en October and December 11, 2012, Complainant contacted and met with
the EEO Specialist at the St. Louis Medical Center. The EEO Specialist was not an EEO counselor. The EEO Specialist testified that she shared information about Complainant’s visit with he r supervisor as was the standard protocol. Information regarding his meeting was not
shared outside of the EEO office. Prior to this, Complainant had not engaged in any EEO activity.
In early December 2012, following multiple reports of abusive behavior by Complainant and an
allegation of falsifying data, the Chief of Staff met with the Director of Quality and the Medical Center Director and asked that an Administrative Investigation Board (“AIB”) be convened. On December 12, 2012, the AIB was convened. O n December 13, 2012, Complainant was placed on
a 120- day detail while the AIB investigated (claim 1). The Chief of Staff testified that it was
standard procedure to detail an employee during a pending AIB.
2019001448, 2019001451
Complainant also asserted that in December 2012 he was discriminatorily denied a performance award due to his EEO activity (claim 2). The Chief of Staff stated that Complainant did not
receive a performance award because his performance rating (Fully Successful) did not meet the criteria for him to receive such a reward. The Acting Chief of Medicine stated that the performance rating that she provided to Complainant was strictly based on performance metrics and had nothing to do with Complainant’s EEO activity. Additionally, the Acting Chief of Medicine n oted that while Complainant did not receive a performance award, he did receive
performance pay of $9,240. On January 10, 2013, Complainant’s attorney sent a letter to the Acting Chief of Medicine that certain actions were taken due to Complainant’s EEO activity. The letter was received on
January 17, 2013.
On January 24, 2013, Complainant made initial contact with an EEO Counselor regarding Complaint 1 , and later filed his formal complaint on March 13, 2013.
On February 27, 2013, the AIB issued a me morandum of findings. The AIB determined that
Complainant “frequently uses loud and abrasive language when dealing with employees”, “consistently threatens them with termination of employment”, and, that his “communication style is a pattern that has exist ed for years”. The AIB report did not substantiate the allegation
that Complainant had falsified date in relation to telemetry errors.
On April 9, 2013, the Chief of Staff recommended to the Medical Center Director that Complainant’s part -time employment be terminated. On April 10, 2013, the Medical Center
Director issued Complainant’s termination letter (claim 3). The Medical Center Director considered input from the Chief of Staff, general staff, and the AIB report in issuing the termination letter. The Medical Center Director stated that Complainant was terminated because
he had a pattern of creating a hostile work environment for staff, and that it was unlikely that his
behavior would change with trainings or interventions. On April 16, 2013, Complaina nt’s
position as a part -time physician was terminated effective April 19, 2013.
Appeal No. 2019001451 – Agency Complaint No. 2003- 0609- 2013103545
(hereinafter referred to as “Complaint 2”)
On or about June 10, 2013, Complainant sought EEO counseling in a second complaint. On July 24, 2013, Complainant filed his second EEO complaint alleging that the Agency
retaliated against him for his prior EEO activity when:
4. on or about May 3, 2013, Complainant became aware that he was removed from consideration f or employment for a physician position and subsequently was not
hired.
2019001448, 2019001451
Complaint 2 was accepted for investigation.
The investigation showed that on January 31, 2013, the Agency issued Vacancy Announcement MRN -T38-13834773 seeking to fill two Cardiology physician positions at the Marion, Illinois
facility. The announcement was open from January 31, 2013 to March 29, 2013. The selecting official for the vacancies at the Marion facility was a Cardiologist (hereinafter referred to as “the Cardiologist”).
On April 25, 2013, Complainant contacted the Cardiologist to inquire about working at the
Marion, Illinois Medical Center (claim 4). The Cardiologist presumed Complainant was seeking a transfer (although he had been terminated at the time) and forwarded Com plainant’s resume to
the Administrative Officer for Medicine Service. On or about April 30, 2013, the Cardiologist contacted the St. Louis Chief of Staff. The Chief of Staff confirmed Complainant’s employments
dates, and when pressed for more information, recommended that the Cardiologist do “due diligence” in the hiring process. There is no evidence that the Cardiologist was told about
Complainant’s termination.
On or about May 3, 2013, the Cardiologist advised Complainant to officially apply for the
position through USAJobs. At the time, the Cardiologist was unaware that the vacancy had
already closed. It is undisputed that Complainant did not officially apply through USAJobs. As a
result, he was not considered for the position.
Hearing Following the Agency’s investigations into both complaints, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ consolidated the two complaints for hearing .
On June 11 and 12, 2018, the AJ held a hearing. On October 5, 2018, the AJ issued a final
Legal Analysis:
the Commission’s website.
2019001448, 2019001451
On March 18, 2013, Com plainant filed a formal EEO complaint alleging that the Agency
unlawfully retaliated against him for engaging in prior protected EEO activity when:
1. on December 13, 2012, Compl ainant received a memorandum that he was being
detailed to another section for 120 days; and,
2. on December 13, 2012, Complainant was denied special pay (performance award)
due to negative comments on his performance appraisal.
On April 12, 2013, the Agenc y accepted Complaint 1 for investigation.
On May 7, 2013, Complainant amended his complaint to add the following issue to his
retaliation claim:
3. on April 16, 2013, Complainant’s part -time employment as a physician was
terminated.
The complaint as amended was accepted for investigation. The investigative record reflects the following pertinent evidence relating to the subject claims.
On May 4, 2004, Complainant was hired as a part -time physician with the Agency. Complainant
received an Outstanding rating for Fiscal Year (“FY”) 2007 and FY 2008. In FY 2009, 2010,
2011 and 2012, Complainant received ratings of Fully Successful. In FY 2012, the Acting Chief of Medicine was Complainant’s first line supervisor, and the Chief
of Staff was Complainant’s second line supervisor.
Around July 2012, a number of employees in the St. Louis Cardiology Department began to complain about Complainant’s managerial style and practices. The Chief of Staff verbally counseled Complainant on this matter. At some point betwe en October and December 11, 2012, Complainant contacted and met with
the EEO Specialist at the St. Louis Medical Center. The EEO Specialist was not an EEO counselor. The EEO Specialist testified that she shared information about Complainant’s visit with he r supervisor as was the standard protocol. Information regarding his meeting was not
shared outside of the EEO office. Prior to this, Complainant had not engaged in any EEO activity.
In early December 2012, following multiple reports of abusive behavior by Complainant and an
allegation of falsifying data, the Chief of Staff met with the Director of Quality and the Medical Center Director and asked that an Administrative Investigation Board (“AIB”) be convened. On December 12, 2012, the AIB was convened. O n December 13, 2012, Complainant was placed on
a 120- day detail while the AIB investigated (claim 1). The Chief of Staff testified that it was
standard procedure to detail an employee during a pending AIB.
2019001448, 2019001451
Complainant also asserted that in December 2012 he was discriminatorily denied a performance award due to his EEO activity (claim 2). The Chief of Staff stated that Complainant did not
receive a performance award because his performance rating (Fully Successful) did not meet the criteria for him to receive such a reward. The Acting Chief of Medicine stated that the performance rating that she provided to Complainant was strictly based on performance metrics and had nothing to do with Complainant’s EEO activity. Additionally, the Acting Chief of Medicine n oted that while Complainant did not receive a performance award, he did receive
performance pay of $9,240. On January 10, 2013, Complainant’s attorney sent a letter to the Acting Chief of Medicine that certain actions were taken due to Complainant’s EEO activity. The letter was received on
January 17, 2013.
On January 24, 2013, Complainant made initial contact with an EEO Counselor regarding Complaint 1 , and later filed his formal complaint on March 13, 2013.
On February 27, 2013, the AIB issued a me morandum of findings. The AIB determined that
Complainant “frequently uses loud and abrasive language when dealing with employees”, “consistently threatens them with termination of employment”, and, that his “communication style is a pattern that has exist ed for years”. The AIB report did not substantiate the allegation
that Complainant had falsified date in relation to telemetry errors.
On April 9, 2013, the Chief of Staff recommended to the Medical Center Director that Complainant’s part -time employment be terminated. On April 10, 2013, the Medical Center
Director issued Complainant’s termination letter (claim 3). The Medical Center Director considered input from the Chief of Staff, general staff, and the AIB report in issuing the termination letter. The Medical Center Director stated that Complainant was terminated because
he had a pattern of creating a hostile work environment for staff, and that it was unlikely that his
behavior would change with trainings or interventions. On April 16, 2013, Complaina nt’s
position as a part -time physician was terminated effective April 19, 2013.
Appeal No. 2019001451 – Agency Complaint No. 2003- 0609- 2013103545
(hereinafter referred to as “Complaint 2”)
On or about June 10, 2013, Complainant sought EEO counseling in a second complaint. On July 24, 2013, Complainant filed his second EEO complaint alleging that the Agency
retaliated against him for his prior EEO activity when:
4. on or about May 3, 2013, Complainant became aware that he was removed from consideration f or employment for a physician position and subsequently was not
hired.
2019001448, 2019001451
Complaint 2 was accepted for investigation.
The investigation showed that on January 31, 2013, the Agency issued Vacancy Announcement MRN -T38-13834773 seeking to fill two Cardiology physician positions at the Marion, Illinois
facility. The announcement was open from January 31, 2013 to March 29, 2013. The selecting official for the vacancies at the Marion facility was a Cardiologist (hereinafter referred to as “the Cardiologist”).
On April 25, 2013, Complainant contacted the Cardiologist to inquire about working at the
Marion, Illinois Medical Center (claim 4). The Cardiologist presumed Complainant was seeking a transfer (although he had been terminated at the time) and forwarded Com plainant’s resume to
the Administrative Officer for Medicine Service. On or about April 30, 2013, the Cardiologist contacted the St. Louis Chief of Staff. The Chief of Staff confirmed Complainant’s employments
dates, and when pressed for more information, recommended that the Cardiologist do “due diligence” in the hiring process. There is no evidence that the Cardiologist was told about
Complainant’s termination.
On or about May 3, 2013, the Cardiologist advised Complainant to officially apply for the
position through USAJobs. At the time, the Cardiologist was unaware that the vacancy had
already closed. It is undisputed that Complainant did not officially apply through USAJobs. As a
result, he was not considered for the position.
Hearing Following the Agency’s investigations into both complaints, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ consolidated the two complaints for hearing .
On June 11 and 12, 2018, the AJ held a hearing. On October 5, 2018, the AJ issued a final
decision concluding Complainant failed to prove unlawful retaliation with regard to any of the
four issues . The AJ determined that the Agency initiated the AIB prior to any responsible
management official having knowledge of Com plainant’s alleged E EO activity. Further, the
detail was based on the AIB as standard protocol , and Complainant’s subsequent removal was a
consequence of the AIB findings. The AJ determined the evidence showed that none of the
responsible management offici als were aware of Co mplainant’s EEO office visit un til after the
AIB was initiated . Regarding the performance award , the AJ determined that there was no
indication that this was the result of his EEO activity rather than his rating on his annual
performance appraisal . Regardi ng the termination, the AJ determined that there was no evidence
of a nexus between the termination and the EEO activity and the termination decision was based
on the findings of the AIB . Lastly, it was undisputed that Complainant failed to officially appl y
for the Marion, Illinois Medical Center Cardiologist position. Therefore, the AJ determined that
there was no evidence that Complainant was discriminatorily r emoved from consideration based
on his EEO activity.
2019001448, 2019001451
Based on evidence of record and the hearing, the AJ concluded that Complainant did not prove,
by a preponderance of the evidence, that he was subjected to unlawful retaliation for his prior
EEO activity.
On October 17, 2018, the Agency issued a final order adopting the AJ’s finding that Complai nant failed to prove his claim of retaliation. The instant appeal followed.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. § 1614.405(a), all post -hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substa ntial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a | Karl W.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No s. 2019001448 and 2019001451
Hearing No. 560-2014-00071X
Agency No s. 2003-0609-2013103545 and 2003-0657-2013101575
DECISION
On November 16, 2018, Complainant filed appeals with the Equal Employment Opp ortunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
October 17, 2018 final order concerning his two equal employment opportunity (EEO)
complaints alleging employment discrimination in violation of Title VII of the Civil Rights Act
of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant w orked as the Chief of
Cardiology at the Agency’s Medical Center in St. Louis, Missouri. Appeal No. 2019001448 – Agency Complaint No. 2003-0657-2013101575 (hereinafter referred to as “Complaint 1”)
On January 24, 2013, Complainant sought EEO counseling alleging that he was subjected to
unlawful retaliation for engaging in prior EEO activity . Infor mal efforts to resolve his concerns
were unsuccessful .
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
2019001448, 2019001451
On March 18, 2013, Com plainant filed a formal EEO complaint alleging that the Agency
unlawfully retaliated against him for engaging in prior protected EEO activity when:
1. on December 13, 2012, Compl ainant received a memorandum that he was being
detailed to another section for 120 days; and,
2. on December 13, 2012, Complainant was denied special pay (performance award)
due to negative comments on his performance appraisal.
On April 12, 2013, the Agenc y accepted Complaint 1 for investigation.
On May 7, 2013, Complainant amended his complaint to add the following issue to his
retaliation claim:
3. on April 16, 2013, Complainant’s part -time employment as a physician was
terminated.
The complaint as amended was accepted for investigation. The investigative record reflects the following pertinent evidence relating to the subject claims.
On May 4, 2004, Complainant was hired as a part -time physician with the Agency. Complainant
received an Outstanding rating for Fiscal Year (“FY”) 2007 and FY 2008. In FY 2009, 2010,
2011 and 2012, Complainant received ratings of Fully Successful. In FY 2012, the Acting Chief of Medicine was Complainant’s first line supervisor, and the Chief
of Staff was Complainant’s second line supervisor.
Around July 2012, a number of employees in the St. Louis Cardiology Department began to complain about Complainant’s managerial style and practices. The Chief of Staff verbally counseled Complainant on this matter. At some point betwe en October and December 11, 2012, Complainant contacted and met with
the EEO Specialist at the St. Louis Medical Center. The EEO Specialist was not an EEO counselor. The EEO Specialist testified that she shared information about Complainant’s visit with he r supervisor as was the standard protocol. Information regarding his meeting was not
shared outside of the EEO office. Prior to this, Complainant had not engaged in any EEO activity.
In early December 2012, following multiple reports of abusive behavior by Complainant and an
allegation of falsifying data, the Chief of Staff met with the Director of Quality and the Medical Center Director and asked that an Administrative Investigation Board (“AIB”) be convened. On December 12, 2012, the AIB was convened. O n December 13, 2012, Complainant was placed on
a 120- day detail while the AIB investigated (claim 1). The Chief of Staff testified that it was
standard procedure to detail an employee during a pending AIB.
2019001448, 2019001451
Complainant also asserted that in December 2012 he was discriminatorily denied a performance award due to his EEO activity (claim 2). The Chief of Staff stated that Complainant did not
receive a performance award because his performance rating (Fully Successful) did not meet the criteria for him to receive such a reward. The Acting Chief of Medicine stated that the performance rating that she provided to Complainant was strictly based on performance metrics and had nothing to do with Complainant’s EEO activity. Additionally, the Acting Chief of Medicine n oted that while Complainant did not receive a performance award, he did receive
performance pay of $9,240. On January 10, 2013, Complainant’s attorney sent a letter to the Acting Chief of Medicine that certain actions were taken due to Complainant’s EEO activity. The letter was received on
January 17, 2013.
On January 24, 2013, Complainant made initial contact with an EEO Counselor regarding Complaint 1 , and later filed his formal complaint on March 13, 2013.
On February 27, 2013, the AIB issued a me morandum of findings. The AIB determined that
Complainant “frequently uses loud and abrasive language when dealing with employees”, “consistently threatens them with termination of employment”, and, that his “communication style is a pattern that has exist ed for years”. The AIB report did not substantiate the allegation
that Complainant had falsified date in relation to telemetry errors.
On April 9, 2013, the Chief of Staff recommended to the Medical Center Director that Complainant’s part -time employment be terminated. On April 10, 2013, the Medical Center
Director issued Complainant’s termination letter (claim 3). The Medical Center Director considered input from the Chief of Staff, general staff, and the AIB report in issuing the termination letter. The Medical Center Director stated that Complainant was terminated because
he had a pattern of creating a hostile work environment for staff, and that it was unlikely that his
behavior would change with trainings or interventions. On April 16, 2013, Complaina nt’s
position as a part -time physician was terminated effective April 19, 2013.
Appeal No. 2019001451 – Agency Complaint No. 2003- 0609- 2013103545
(hereinafter referred to as “Complaint 2”)
On or about June 10, 2013, Complainant sought EEO counseling in a second complaint. On July 24, 2013, Complainant filed his second EEO complaint alleging that the Agency
retaliated against him for his prior EEO activity when:
4. on or about May 3, 2013, Complainant became aware that he was removed from consideration f or employment for a physician position and subsequently was not
hired.
2019001448, 2019001451
Complaint 2 was accepted for investigation.
The investigation showed that on January 31, 2013, the Agency issued Vacancy Announcement MRN -T38-13834773 seeking to fill two Cardiology physician positions at the Marion, Illinois
facility. The announcement was open from January 31, 2013 to March 29, 2013. The selecting official for the vacancies at the Marion facility was a Cardiologist (hereinafter referred to as “the Cardiologist”).
On April 25, 2013, Complainant contacted the Cardiologist to inquire about working at the
Marion, Illinois Medical Center (claim 4). The Cardiologist presumed Complainant was seeking a transfer (although he had been terminated at the time) and forwarded Com plainant’s resume to
the Administrative Officer for Medicine Service. On or about April 30, 2013, the Cardiologist contacted the St. Louis Chief of Staff. The Chief of Staff confirmed Complainant’s employments
dates, and when pressed for more information, recommended that the Cardiologist do “due diligence” in the hiring process. There is no evidence that the Cardiologist was told about
Complainant’s termination.
On or about May 3, 2013, the Cardiologist advised Complainant to officially apply for the
position through USAJobs. At the time, the Cardiologist was unaware that the vacancy had
already closed. It is undisputed that Complainant did not officially apply through USAJobs. As a
result, he was not considered for the position.
Hearing Following the Agency’s investigations into both complaints, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ consolidated the two complaints for hearing .
On June 11 and 12, 2018, the AJ held a hearing. On October 5, 2018, the AJ issued a final
decision concluding Complainant failed to prove unlawful retaliation with regard to any of the
four issues . The AJ determined that the Agency initiated the AIB prior to any responsible
management official having knowledge of Com plainant’s alleged E EO activity. Further, the
detail was based on the AIB as standard protocol , and Complainant’s subsequent removal was a
consequence of the AIB findings. The AJ determined the evidence showed that none of the
responsible management offici als were aware of Co mplainant’s EEO office visit un til after the
AIB was initiated . Regarding the performance award , the AJ determined that there was no
indication that this was the result of his EEO activity rather than his rating on his annual
performance appraisal . Regardi ng the termination, the AJ determined that there was no evidence
of a nexus between the termination and the EEO activity and the termination decision was based
on the findings of the AIB . Lastly, it was undisputed that Complainant failed to officially appl y
for the Marion, Illinois Medical Center Cardiologist position. Therefore, the AJ determined that
there was no evidence that Complainant was discriminatorily r emoved from consideration based
on his EEO activity.
2019001448, 2019001451
Based on evidence of record and the hearing, the AJ concluded that Complainant did not prove,
by a preponderance of the evidence, that he was subjected to unlawful retaliation for his prior
EEO activity.
On October 17, 2018, the Agency issued a final order adopting the AJ’s finding that Complai nant failed to prove his claim of retaliation. The instant appeal followed.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. § 1614.405(a), all post -hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substa ntial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board
, 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whethe r or not discriminatory intent existed is a factual finding.
See Pullman -Standard Co. v. Swint , 456 U.S. 273, 293 (1982). An AJ's conclusions of law are
subject to a de novo standard of review, whether or not a hearing was held.
A claim of disparate treatment is examined under the three -part analysis first enunciated in
McDonnell Douglas Corporation v. Green
, 411 U.S. 792 (1973). For complainant to prevail, he
must first establish a prima facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e. , that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas , 411 U.S. at 802; Furnco
Construction Corp. v. Waters , 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine , 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant be ars the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks , 509 U.S. 502 (1993).
We find that substantial evidence of re cord, developed during the investigation and the hearing,
supports the AJ’s decision that Complainant failed to prove his retaliation claim. T he weight of
the evidence establishes that there were legitimate, non -retaliatory reasons for the disputed
action s. Specifically, in early December 2012, due to multiple reports from staff of abusive
behavior and an al legation of falsifying data, management decided to convene an Administrative
Investigation Board (“AIB”) to investigate the matter. Standard protocol dictated that
Complainant be placed on a detail while the AIB investigated the allegations (claim 1). There was no change to Complainant’s pay or benefits at this time . While the timing of the AIB
investigation, and detail were close in proximity to Complai nant’s visit to the Agency’s EEO
office (his only prior protected activity) , there is no evidence that any of the responsible
management officials were aware of such a visit at the time the AIB was convened.
2019001448, 2019001451
Regarding Complainant’s alleged denial of a performance award (claim 2), there is also no
evidence of a nexus between Complainant’s alleged denial of pay and his EEO activity. We note
that awards were based on Complainant’s performance appraisal rating, and his rating of Fully Successful did not war rant an award under established Agency policy. Significantly,
Complainant had received the same Fully Successful rating on his performance appraisal for the
three prior years (2009 – 2011), long before his EEO activity. Additionally, while Complainant
did not receive a performance award, he did receive performance pay of $9,240 for 2012.
Regarding the termination, we also agree with the AJ that there was no evidence of a nexus between the termination and the EEO activity. While the close proximity betwe en Complainant’s
filing of Complaint 1 and his termination create an initial inference that retaliatory animus may have been in play, ultimately the evidence does not establish unlawful retaliation. W e agree with
the AJ that Complainant’s termination was legitimate given the circumstances and the AIB
investigation (claim 3). The weight of the evidence establishes that the decision to terminate
Complain ant’s employment was based strictly on the results of the AIB investigation convened
before any knowledge of Complainant’s EEO activity . Complainant argues that the evidence of
retaliation regarding his termination is that the AIB recommended that he participate in a counseling program, not that he be terminated. However, the Director, who was the official w ho
made the decision to terminate Complainant, testified at the hearing that she based her decision to terminate on the AIB ’s report that he had created a hostile work environment for staff working
for him and she believed that when “employees do not feel that they are working in a psychologically safe environment, bad things happen to patients .” She also noted that the AIB
findings led her to believe that Complainant’s negative management style had continued for years and was unlikely to change. Complaina nt himself acknowledged that his management style
was consistent for thirty years.
Lastly, it was undisputed that Complainant did not formally apply for the Marion, Illinois
Cardiology positions through USAJobs (claim 4) . Complainant argued that his effor ts to find
employment elsewhere w ere obstructed by St. Louis management in retaliation for his EEO
activity. However, aside from his pure conjecture, there is no evidence of this. The Cardiologist testified that nothing negative was said of Complainant’s w ork, and that he did not take the Chief
of Staff’s comment of “due diligence” to have any negative references. The Cardiologist further testified that he was still interested in hiring Complainant and reminded Complainant to
officially apply. There is simp ly no evidence to suggest that Complainant’s non- selection was
due to anything other than his own failure to submit an application through USAJobs. While
Complainant provided testimony that the Agency did not have to hire for physician positions
through t he USAJobs competitive process, that does not change the fact that the Marion
management, who had no knowledge of Complainant’s EEO activity, legitimately had chosen to do so.
2019001448, 2019001451
In sum, we conclude the AJ’s decision is well- reasoned and fully supported by substantial
evidence developed during the investigation and hearing.2 We have reviewed the appellate
arguments advanced by Complainant. However, we determine that Complainant has offered no
persuasive arguments on appeal regarding the AJ’s conclusions on the merits of his claims .
As a final matter, at the end of his brief of appeal, Complainant argues that the AJ erred in not
further sanctioning the Agency for its alleged failure to fully respond to discovery. Our review
of the record shows that the par ties engaged in a robust exchange of motions and arguments
before the AJ on a variety of discovery issues , with the AJ exhibiting full control of the
discovery process through the issuance of various orders. We conclude that there is an insufficient basis to find that the AJ abused her discretion in these matters.
CONCLUSION
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Commission to AFFIRM the Agency’s final decisi on
implementing the AJ’s finding of no discrimination because the preponderance of the evidence of record does not establish that unlawful retaliation occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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 thi rty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See
29 C.F.R. § 1614.405;
Equal Employ ment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD -110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507.
2 While on appeal, Complainant identifies several factual errors in the AJ’s decision, we
conclude that these errors do not impact our conclusions of law in this case.
2019001448, 2019001451
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 agency’s request must be submitted in digital format via the EEOC’s Federal
Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The r equest 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).
COMPLAI NANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
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 a s 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 “departmen t” 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMI SSION:
______________________________ Carlton M
Carlton M. Hadden, Director
Office of Federal Operations
July 30, 2019
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275 | https://www.eeoc.gov/sites/default/files/decisions/2022_07_20/2020004591.pdf | 2020004591.pdf | PDF | application/pdf | 20,528 | Myrna S.,1 Complainant, v. E. Sequoyah Simermeyer, Chairman, National Indian Gaming Commission (NIGC) , Agency. | August 18, 2020 | Appeal Number: 2020004591
Background:
At the time of events giving rise to this complaint, Complainant worked as the Agency’s part-
time EEO Director, GS -15, in the Office of the EEO Director in Washington, D.C.
Complainant first applied for the EEO Director position in 2016. See Electronic Complaint File
(Complaint File) at 32. Though Complainant was one of the three finalists for the position, the
Agency ultimately selected a Caucasian female. Id. at 37. When that individual retired in 2018,
the Agency reached out to the finalis ts from the 2016 vacancy announcement to see whether they
were still interested in the position. Id.
On June 14, 2018, Complainant met with the Commission ’s Chair, Deputy Ethics Counsel, and
Staff Liaison to interview for the position again. See Complaint File at 23. During the interview,
Complainant allegedly informed the panel members that she maintained a private employment
law firm focusing on EEO litigation and that her firm focused more on representing employees
rather than federal agencies. Id. Complainant alleged that the panel members “found no issue or
conflict [between] her law practice and the EEO Director position.” Id. However, none of the
panel members recalled Complainant informin g them of her intent to continue private practice.
Id. at 26, 32, 39. After Complainant was hired on October 2, 2018, Complainant continued to
maintain her private part- time EEO law firm and concurrently served as the Agency part -time
EEO Director. On Nove mber 8, 2018, Complainant submitted her financial disclosure form,
wherein she disclosed her continued private practice of law. Id. at 23 and 34.
On December 4, 2018, Complainant met with several senior Agency officials, including the
Agency’s Chair , Gene ral Counsel , and Deputy Ethics Counsel , to discuss whether the Agency
should conduct an independent investigation into a sexual harassment claim against a senior
manager. See Complaint File at 23. While the General Counsel and Deputy Ethics Counsel were
opposed to conducting an independent investigation due their concern that such an investigation
may interfere with the ongoing EEO investigation, Complainant steadfast ly urged the Chair to
conduct concurrent investigations , citin g the Agency’s legal obligation to ensure a harassment
free workplace. Id. Ultimately, the Chair sided with Complainant and decided to pursue
concurrent investigations . Id. at 29.
Approximately six days later, the Deputy Ethics Counsel began reviewing Complainant’s
November 8, 2019, financial disclosure form and learned that Complainant still maintained a
private law practice. See Complaint File at 34 -37. After conducting research into the matter, the
Deputy Ethics Counsel determined that Complainant’s concurrent private law practice not only
posed ethical issues regarding Complainant’s ability to maintain neutrality as an EEO Director,
but also potentially violated the criminal statute at 18 U.S.C. § 205. Id. On the advice of the
Department of Interio r (DOI), Departmental Ethics Office , the Deputy Ethics Counsel disclosed
the violation to the DOI Office of Inspector General. Id. On December 11, 2018, the Deputy
Ethics Counsel notified Complainant by email that she had to decide , by close of business the
next day, whether to close her private law practice or resign as EEO Director. Id. In his email to
Complainant, the Deputy Ethics C ounsel expressly informed Complainant that the Agency
would give her “a few days,” to “dispose of [her] clients who have business before the federal
government.” Id. at 54. Within 10 minutes of receiving the email, Complainant submitted her
resignation. Id.
On January 29, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African American), sex (female), and reprisal for
prior protected EEO activity under Title VII of the Civil Rights Act of 1964. As Complainant
was the Agency’s former EEO Director, the Agency reached out to the Small Agency Council to request assistance in processing the complaint.
On May 8, 2019, the Agency entered into a memorandum of understanding (MOU) with the U.S.
Feder al Trade Commission (FTC) to investigate the complaint. On June 6, 2019, the FTC
accepted the following claims for investigation :
1. On December 11, 2018, Complainant was accused by the NIGC Deputy Ethics
Counsel of violating a criminal statute (18 U.S.C. § 205(a)) due to an alleged conflict
between her part -time employment law practice and her part- time position as the
NIGC EEO Director;
2. On December 11, 2018, the Deputy Ethics Counsel gave Complainant one day to either resign from her part- time EEO Director position or close her part -time
employment law practice. This oral ultimatum, delivered to her over the telephone by the Deputy Ethics Counsel , occurred shortly after Complainant had advocated in a
management meeting on December 4, 2018, for the investigat ion of a NIGC
employee’s allegations of sexual harassment;
3. On December 11, 2018, the Deputy Ethics Counsel informed Complainant that regardless of whether Complainant resigned her EEO Director position or closed her employment law practice, he had disclosed Complainant’s outside employment law practice to the DOI’s Office of Ethics, and the Deputy Ethics Counsel informed
Complainant that she would likely be referred to the DOI’s Inspector General for
investigation; and
4. On December 11, 2018, the NIGC constructively discharged Complainant from her
position as EEO Director.
Complainant subsequently amended her complaint on June 18, 2019, to include two additional
claims of discrimination based on reprisal when:
5. On May 6, 2019, the NIGC’s Acting EEO Dir ector informed Complainant that she
had shared Complainant’s confidential information concerning Complainant’s EEO complaint with another federal agency to get assistance in processing the complaint. The Acting EEO Director also stated that the other agenc y communicated to the
NIGC that it could not process the EEO complaint because of a conflict of interest; and
6. The NIGC’s actions concerning Complainant’s confidential information from her EEO complaint conflicted with a letter Complainant received from th e NIGC in
January 2019, informing her that a NIGC employee would be handling her complaint, despite the NIGC knowing that her case would be a conflict of interest. Subsequently, the NIGC decided to share Complainant’s confidential information about her EEO
complaint to other federal agencies.
When the FTC failed to issue a report of investigation (ROI) within 180 days of her formal
complaint, Complainant filed a request , on August 14, 2019, for a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). On October 16, 2019,
Complainant filed a motion for default judgment and sanctions due to the FTC’s failure to timely
investigate her complaint and provide a ROI .
The Agency opposed the motion on the grounds that the delay w as due, in part , to time needed to
determine how to proceed with the investigation of the complaint and find a neutral agency to
investigate the complaint.
At the conclusion of the investigation on October 28, 2019, the Agency provided Complainant
with a copy of the ROI and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing; however,
the AJ assigned to the case determi ned sua sponte that the complaint did not warrant a hearing
and notified the parties of his intent to issue a decision without a hearing in favor of the Agency. Both parties responded to the AJ’s notice.
In her opposition, Complainant argued that it was i mproper for the AJ to issue a decision without
a hearing because there were genuine issues of fact in dispute. In so arguing, Complainant
stridently maintained that the preponderant evidence showed that sh e had been subjected to
discrimination when she was given the ultimatum to either close her private law firm or resign
from her position on account of an alleged criminal violation. Complainant argued that the Agency violated ethics rules when it gave her the ultimatum without providing her an ethics
opinion. She also contended that the Agency treated her less favorably than employees outside of
her protected classes because management did not force an employee who was accused of sexual
harassment to resign. Lastly, Complainant maintained that the Agency retaliated against her
when it pursued criminal charges and sent email s containing her personal to other agencies in an
attempt to retain a neutral agency to conduct the EEO investigation.
Without ruling on Complainant’s motion for default judgment , the AJ issued a decision without a
hearing on June 12, 2020, which concluded that Complainant failed to show that the Agency’s
legitimate, nondiscriminatory reasons were pretext for discrimination . In finding no
discrimination, the AJ expressly f ound that the Agency did not retaliate against Complainant
when it sent emails to other agencies containing her personal information, as the record showed
that the recipients had a legitimate business reason to know . The Agency subsequently issued a
final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed.
On appeal, Complainant initially argues that the AJ abused his discretion when: 1) he allegedly
behaved in an argumentative and intimidating manner towards her ; and 2) accepted the Agency’s
untimely response to their notice. Complainant also maintains that the AJ’s issuance of a
Legal Analysis:
the Commission ’s Chair, Deputy Ethics Counsel, and
Staff Liaison to interview for the position again. See Complaint File at 23. During the interview,
Complainant allegedly informed the panel members that she maintained a private employment
law firm focusing on EEO litigation and that her firm focused more on representing employees
rather than federal agencies. Id. Complainant alleged that the panel members “found no issue or
conflict [between] her law practice and the EEO Director position.” Id. However, none of the
panel members recalled Complainant informin g them of her intent to continue private practice.
Id. at 26, 32, 39. After Complainant was hired on October 2, 2018, Complainant continued to
maintain her private part- time EEO law firm and concurrently served as the Agency part -time
EEO Director. On Nove mber 8, 2018, Complainant submitted her financial disclosure form,
wherein she disclosed her continued private practice of law. Id. at 23 and 34.
On December 4, 2018, Complainant met with several senior Agency officials, including the
Agency’s Chair , Gene ral Counsel , and Deputy Ethics Counsel , to discuss whether the Agency
should conduct an independent investigation into a sexual harassment claim against a senior
manager. See Complaint File at 23. While the General Counsel and Deputy Ethics Counsel were
opposed to conducting an independent investigation due their concern that such an investigation
may interfere with the ongoing EEO investigation, Complainant steadfast ly urged the Chair to
conduct concurrent investigations , citin g the Agency’s legal obligation to ensure a harassment
free workplace. Id. Ultimately, the Chair sided with Complainant and decided to pursue
concurrent investigations . Id. at 29.
Approximately six days later, the Deputy Ethics Counsel began reviewing Complainant’s
November 8, 2019, financial disclosure form and learned that Complainant still maintained a
private law practice. See Complaint File at 34 -37. After conducting research into the matter, the
Deputy Ethics Counsel determined that Complainant’s concurrent private law practice not only
posed ethical issues regarding Complainant’s ability to maintain neutrality as an EEO Director,
but also potentially violated the criminal statute at 18 U.S.C. § 205. Id. On the advice of the
Department of Interio r (DOI), Departmental Ethics Office , the Deputy Ethics Counsel disclosed
the violation to the DOI Office of Inspector General. Id. On December 11, 2018, the Deputy
Ethics Counsel notified Complainant by email that she had to decide , by close of business the
next day, whether to close her private law practice or resign as EEO Director. Id. In his email to
Complainant, the Deputy Ethics C ounsel expressly informed Complainant that the Agency
would give her “a few days,” to “dispose of [her] clients who have business before the federal
government.” Id. at 54. Within 10 minutes of receiving the email, Complainant submitted her
resignation. Id.
On January 29, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African American), sex (female), and reprisal for
prior protected EEO activity under Title VII of the Civil Rights Act of 1964. As Complainant
was the Agency’s former EEO Director, the Agency reached out to the Small Agency Council to request assistance in processing the complaint.
On May 8, 2019, the Agency entered into a memorandum of understanding (MOU) with the U.S.
Feder al Trade Commission (FTC) to investigate the complaint. On June 6, 2019, the FTC
accepted the following claims for investigation :
1. On December 11, 2018, Complainant was accused by the NIGC Deputy Ethics
Counsel of violating a criminal statute (18 U.S.C. § 205(a)) due to an alleged conflict
between her part -time employment law practice and her part- time position as the
NIGC EEO Director;
2. On December 11, 2018, the Deputy Ethics Counsel gave Complainant one day to either resign from her part- time EEO Director position or close her part -time
employment law practice. This oral ultimatum, delivered to her over the telephone by the Deputy Ethics Counsel , occurred shortly after Complainant had advocated in a
management meeting on December 4, 2018, for the investigat ion of a NIGC
employee’s allegations of sexual harassment;
3. On December 11, 2018, the Deputy Ethics Counsel informed Complainant that regardless of whether Complainant resigned her EEO Director position or closed her employment law practice, he had disclosed Complainant’s outside employment law practice to the DOI’s Office of Ethics, and the Deputy Ethics Counsel informed
Complainant that she would likely be referred to the DOI’s Inspector General for
investigation; and
4. On December 11, 2018, the NIGC constructively discharged Complainant from her
position as EEO Director.
Complainant subsequently amended her complaint on June 18, 2019, to include two additional
claims of discrimination based on reprisal when:
5. On May 6, 2019, the NIGC’s Acting EEO Dir ector informed Complainant that she
had shared Complainant’s confidential information concerning Complainant’s EEO complaint with another federal agency to get assistance in processing the complaint. The Acting EEO Director also stated that the other agenc y communicated to the
NIGC that it could not process the EEO complaint because of a conflict of interest; and
6. The NIGC’s actions concerning Complainant’s confidential information from her EEO complaint conflicted with a letter Complainant received from th e NIGC in
January 2019, informing her that a NIGC employee would be handling her complaint, despite the NIGC knowing that her case would be a conflict of interest. Subsequently, the NIGC decided to share Complainant’s confidential information about her EEO
complaint to other federal agencies.
When the FTC failed to issue a report of investigation (ROI) within 180 days of her formal
complaint, Complainant filed a request , on August 14, 2019, for a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). On October 16, 2019,
Complainant filed a motion for default judgment and sanctions due to the FTC’s failure to timely
investigate her complaint and provide a ROI .
The Agency opposed the motion on the grounds that the delay w as due, in part , to time needed to
determine how to proceed with the investigation of the complaint and find a neutral agency to
investigate the complaint.
At the | Myrna S.,1
Complainant,
v.
E. Sequoyah Simermeyer,
Chairman,
National Indian Gaming Commission (NIGC) ,
Agency.
Appeal No. 2020004591
Hearing No. 570-2019-01639X
Agency No. DOI- NIGC-19-01
DECISION
On August 18, 2020, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 20, 2020, final order concerning her equal employment opportunity (EEO) compl aint
alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, we AFFIRM the
Agency’s final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as the Agency’s part-
time EEO Director, GS -15, in the Office of the EEO Director in Washington, D.C.
Complainant first applied for the EEO Director position in 2016. See Electronic Complaint File
(Complaint File) at 32. Though Complainant was one of the three finalists for the position, the
Agency ultimately selected a Caucasian female. Id. at 37. When that individual retired in 2018,
the Agency reached out to the finalis ts from the 2016 vacancy announcement to see whether they
were still interested in the position. Id.
On June 14, 2018, Complainant met with the Commission ’s Chair, Deputy Ethics Counsel, and
Staff Liaison to interview for the position again. See Complaint File at 23. During the interview,
Complainant allegedly informed the panel members that she maintained a private employment
law firm focusing on EEO litigation and that her firm focused more on representing employees
rather than federal agencies. Id. Complainant alleged that the panel members “found no issue or
conflict [between] her law practice and the EEO Director position.” Id. However, none of the
panel members recalled Complainant informin g them of her intent to continue private practice.
Id. at 26, 32, 39. After Complainant was hired on October 2, 2018, Complainant continued to
maintain her private part- time EEO law firm and concurrently served as the Agency part -time
EEO Director. On Nove mber 8, 2018, Complainant submitted her financial disclosure form,
wherein she disclosed her continued private practice of law. Id. at 23 and 34.
On December 4, 2018, Complainant met with several senior Agency officials, including the
Agency’s Chair , Gene ral Counsel , and Deputy Ethics Counsel , to discuss whether the Agency
should conduct an independent investigation into a sexual harassment claim against a senior
manager. See Complaint File at 23. While the General Counsel and Deputy Ethics Counsel were
opposed to conducting an independent investigation due their concern that such an investigation
may interfere with the ongoing EEO investigation, Complainant steadfast ly urged the Chair to
conduct concurrent investigations , citin g the Agency’s legal obligation to ensure a harassment
free workplace. Id. Ultimately, the Chair sided with Complainant and decided to pursue
concurrent investigations . Id. at 29.
Approximately six days later, the Deputy Ethics Counsel began reviewing Complainant’s
November 8, 2019, financial disclosure form and learned that Complainant still maintained a
private law practice. See Complaint File at 34 -37. After conducting research into the matter, the
Deputy Ethics Counsel determined that Complainant’s concurrent private law practice not only
posed ethical issues regarding Complainant’s ability to maintain neutrality as an EEO Director,
but also potentially violated the criminal statute at 18 U.S.C. § 205. Id. On the advice of the
Department of Interio r (DOI), Departmental Ethics Office , the Deputy Ethics Counsel disclosed
the violation to the DOI Office of Inspector General. Id. On December 11, 2018, the Deputy
Ethics Counsel notified Complainant by email that she had to decide , by close of business the
next day, whether to close her private law practice or resign as EEO Director. Id. In his email to
Complainant, the Deputy Ethics C ounsel expressly informed Complainant that the Agency
would give her “a few days,” to “dispose of [her] clients who have business before the federal
government.” Id. at 54. Within 10 minutes of receiving the email, Complainant submitted her
resignation. Id.
On January 29, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African American), sex (female), and reprisal for
prior protected EEO activity under Title VII of the Civil Rights Act of 1964. As Complainant
was the Agency’s former EEO Director, the Agency reached out to the Small Agency Council to request assistance in processing the complaint.
On May 8, 2019, the Agency entered into a memorandum of understanding (MOU) with the U.S.
Feder al Trade Commission (FTC) to investigate the complaint. On June 6, 2019, the FTC
accepted the following claims for investigation :
1. On December 11, 2018, Complainant was accused by the NIGC Deputy Ethics
Counsel of violating a criminal statute (18 U.S.C. § 205(a)) due to an alleged conflict
between her part -time employment law practice and her part- time position as the
NIGC EEO Director;
2. On December 11, 2018, the Deputy Ethics Counsel gave Complainant one day to either resign from her part- time EEO Director position or close her part -time
employment law practice. This oral ultimatum, delivered to her over the telephone by the Deputy Ethics Counsel , occurred shortly after Complainant had advocated in a
management meeting on December 4, 2018, for the investigat ion of a NIGC
employee’s allegations of sexual harassment;
3. On December 11, 2018, the Deputy Ethics Counsel informed Complainant that regardless of whether Complainant resigned her EEO Director position or closed her employment law practice, he had disclosed Complainant’s outside employment law practice to the DOI’s Office of Ethics, and the Deputy Ethics Counsel informed
Complainant that she would likely be referred to the DOI’s Inspector General for
investigation; and
4. On December 11, 2018, the NIGC constructively discharged Complainant from her
position as EEO Director.
Complainant subsequently amended her complaint on June 18, 2019, to include two additional
claims of discrimination based on reprisal when:
5. On May 6, 2019, the NIGC’s Acting EEO Dir ector informed Complainant that she
had shared Complainant’s confidential information concerning Complainant’s EEO complaint with another federal agency to get assistance in processing the complaint. The Acting EEO Director also stated that the other agenc y communicated to the
NIGC that it could not process the EEO complaint because of a conflict of interest; and
6. The NIGC’s actions concerning Complainant’s confidential information from her EEO complaint conflicted with a letter Complainant received from th e NIGC in
January 2019, informing her that a NIGC employee would be handling her complaint, despite the NIGC knowing that her case would be a conflict of interest. Subsequently, the NIGC decided to share Complainant’s confidential information about her EEO
complaint to other federal agencies.
When the FTC failed to issue a report of investigation (ROI) within 180 days of her formal
complaint, Complainant filed a request , on August 14, 2019, for a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). On October 16, 2019,
Complainant filed a motion for default judgment and sanctions due to the FTC’s failure to timely
investigate her complaint and provide a ROI .
The Agency opposed the motion on the grounds that the delay w as due, in part , to time needed to
determine how to proceed with the investigation of the complaint and find a neutral agency to
investigate the complaint.
At the conclusion of the investigation on October 28, 2019, the Agency provided Complainant
with a copy of the ROI and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing; however,
the AJ assigned to the case determi ned sua sponte that the complaint did not warrant a hearing
and notified the parties of his intent to issue a decision without a hearing in favor of the Agency. Both parties responded to the AJ’s notice.
In her opposition, Complainant argued that it was i mproper for the AJ to issue a decision without
a hearing because there were genuine issues of fact in dispute. In so arguing, Complainant
stridently maintained that the preponderant evidence showed that sh e had been subjected to
discrimination when she was given the ultimatum to either close her private law firm or resign
from her position on account of an alleged criminal violation. Complainant argued that the Agency violated ethics rules when it gave her the ultimatum without providing her an ethics
opinion. She also contended that the Agency treated her less favorably than employees outside of
her protected classes because management did not force an employee who was accused of sexual
harassment to resign. Lastly, Complainant maintained that the Agency retaliated against her
when it pursued criminal charges and sent email s containing her personal to other agencies in an
attempt to retain a neutral agency to conduct the EEO investigation.
Without ruling on Complainant’s motion for default judgment , the AJ issued a decision without a
hearing on June 12, 2020, which concluded that Complainant failed to show that the Agency’s
legitimate, nondiscriminatory reasons were pretext for discrimination . In finding no
discrimination, the AJ expressly f ound that the Agency did not retaliate against Complainant
when it sent emails to other agencies containing her personal information, as the record showed
that the recipients had a legitimate business reason to know . The Agency subsequently issued a
final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed.
On appeal, Complainant initially argues that the AJ abused his discretion when: 1) he allegedly
behaved in an argumentative and intimidating manner towards her ; and 2) accepted the Agency’s
untimely response to their notice. Complainant also maintains that the AJ’s issuance of a
decision without a hearing was impr oper because t hey issued the decision without ruling on her
motion for default judgment for the Agency’s failure to issue a ROI within the required 180 -day
timeframe. As for the merits of her complaint, Complainant largely reiterates the same
contentions that she previously raised. The Agency opposes the appeal and requests that the Commission affirm its final order.
The Commission’ s regulations allow an AJ to grant s ummary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g).
An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in
favor of the non- moving party. Celotex v. Cat rett, 477 U.S. 317, 322- 23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to
affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29
C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Mana gement Directive
for 29 C.F.R. Part 1614 (EEO -MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an
administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicabl e law. Such a
dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferen ces raised by the undisputed facts in favor
of Complainant, a reasonable factfinder could not find in Complainant’s favor. Having reviewed the AJ’s decision and the evidence of record, as well as the parties’ arguments
on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as al leged .
In reaching this conclusion, we are mindful of Complainant’s contention that the Agency was
well aware that she intended to continue the private practice of law while concurrently serving as
the Agency’s EEO Director ; however, we note that none of the panel members recalled
Complainant making such a statement. See Complaint File at 26, 32, and 39. We also find
Complainant’s contention that the Agency forced her to resign by requiring her to close her
private practice within one day , to be inconsiste nt with the record, as the documentary evidence
clearly shows that the Deputy Ethics Counsel gave Complainant “a few days,” to “dispose of [her] clients who have business before the federal government.” Id. at 54. We note that
Complainant never asked the Deputy Ethics Counsel for additional time to close her private law firm. Given the totality of the record, we are disinclined to find that the Agency acted with
discriminatory or retaliatory animus with rega rd to any action taken by the Deputy Ethics
Counsel. To the extent that the Complainant alleges that the Agency acted with retaliatory animus when it sent emails to other agencies, we agree with the AJ that the Agency had legitimate, nondiscriminatory rea sons for disclosing Complainant’s information to limited third parties in
the federal EEO community. We find no persuasive evidence that the Agency undertook the alleged actions with the intent to chill Complainant’s participation in the EEO process. Rathe r, it
is apparent to us that given Complainant’s extensive private EEO practice, the Agency needed to
disclose her personal information in order to find an agency without a conflict of interest.
We agree with the AJ that the Agency’s actions, in this regar d, were in furtherance of
Complainant’s interests.
Finally, we carefully considered Complainant’s procedural arguments; however, w e find them to
be unpersuasive, as Complainant has not adduced any material evidence of impropriety on the
part of the AJ during the hearing process . Furthermore, while we are mindful of the delay in
processing the complaint, we recognize that the delay was related to time needed to: 1) determine
how to proceed with the complaint given Complainant ’s former role as EEO Director ; and 2)
find an agency to investigate the complaint and enter into a MOU . As the underlying evidence
fails to demonstrate that the Agency acted in bad faith, we find the delay, as well as the AJ’s
failure to rule on Complainant’s motion for default judgment based on the delay, to be harmless. Based on the foregoing, we shall AFFIRM the Agency’s final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONS IDERATION (M0920)
The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be fil ed with EEOC’s Office of Federal Operations (OFO)
within thirty (30) calendar days of receipt of this decision. If the party requesting
reconsideration elects to file a statement or brief in support of the request, that statement or
brief must be filed to gether with the request for reconsideration . A party shall have twenty
(20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD -110), at Chap. 9 § VII.B
(Aug. 5, 2015).
Complainant should submit his or her request for reconsideration, and any statement or brief in
support of his or her request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx
Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed
to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s reque st to
reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EE OC’s
Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request
and/or statement or brief in opposition must also include proof of service on the other party,
unless Complainant files his or her request via the EEOC Public Po rtal, in which case no proof of
service is required.
Failure to file within the 30 -day time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the
request . Any supporting documentation must be submitted together with the 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The
court ha s the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMI SSION:
______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
May 24, 2022
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276 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a44471.txt | 01a44471.txt | TXT | text/plain | 8,559 | Larry J. Rozelle v. Department of Defense 01A44471 March 28, 2005 . Larry J. Rozelle, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Army & Air Force Exchange Service) Agency. | March 28, 2005 | Appeal Number: 01A44471
Case Facts:
Complainant , a Sales Area Manager, was stationed at an agency facility
in Uzbekistan. During his deployment in Uzbekistan, complainant married
a native of Uzbekistan. Complainant filed a formal EEO complaint dated
February 26, 2004, wherein he claimed that he was discriminated against on
the bases of his wife's national origin (Uzbek) and religion (Muslim) when
from April 28, 2003 through October 2003, he was subjected to harassment.
Specifically, complainant claimed that he was not allowed to visit his
wife off base after work hours. Complainant also claimed that he was
not paid for hours he was required to work.
By decision dated May 20, 2004, the agency dismissed the complaint on the
grounds that complainant failed to initiate contact with an EEO Counselor
in a timely manner. The agency determined that complainant initiated
contact with an EEO Counselor on February 6, 2004. The agency stated that
an EEO poster setting forth the 45-day limitation period for contacting an
EEO Counselor was posted on the employee bulletin board less than three
feet from complainant's office. The agency noted that complainant's
explanation for his untimely EEO contact was that he had just relocated
after being on a one year tour of duty and had a permanent change of
station move from Lackland Air Force Base to the Davis-Monthan Air Force
Base; he had to relocate his family from Uzbekistan to the United States;
and he sought legal advice and corresponded with the Commission. The
agency stated that complainant reported to the Davis-Monthan Air Force
Base on or about October 27, 2003, and that except for a few hours of
vacation leave taken, he was at work from November 7, 2003 until his
initial EEO contact in February 2004. The agency concluded that the
fact that complainant sought legal advice and corresponded with the
Commission does not extend the time limit for contacting an EEO Counselor.
On appeal, complainant contends that he was unaware that he had to
file his complaint with the agency before pursuing a complaint with the
Commission. Complainant states that the reasons for his untimely EEO
contact were that he was returning from a one-year overseas deployment,
a permanent change of station, relocating his family to the United States,
seeking legal advice, and corresponding with the Commission. Complainant
claims that the agency has allowed many of its employees to live off
base in various locations. Complainant states that he was threatened
with disciplinary action if he visited his wife after work hours.
In response, the agency asserts that it based its determination regarding
timeliness on complainant's permanent assignment at the Davis-Monthan
Air Force Base on or about October 27, 2003. The agency stated that
complainant's contact with an EEO Counselor on or about February 6, 2004,
was over 100 days after he arrived at the Davis-Monthan Air Force Base.
The agency asserts with regard to complainant's contention that he did
not know he had to file with the agency before the Commission that
complainant did not contact the Commission until January 25, 2004,
approximately 90 days after his arrival at the Davis-Monthan Air Force
Base. The agency asserts that complainant had constructive knowledge of
the 45-day limitation period and also direct knowledge as he attended
an EEO for Managers course that specifically addressed the 45 calendar
day requirement.
With regard to whether complainant was aware of the 45-day limitation
period, the agency maintains that under the doctrine of constructive
notice, complainant knew or should have known of the 45-day limitation
period. The record contains a declaration from the Human Resources
Manager at the Davis-Monthan Air Force Base Exchange. The Human Resources
Manager stated that an EEO poster setting forth the 45-day limitation
period was displayed on the employee bulletin board less than three feet
from complainant's office. The record contains a copy of that EEO poster.
We find that complainant had constructive notice of the 45-day limitation
period commencing when he began work at the Davis-Monthan Air Force
Base Exchange, on or about October 27, 2003. Therefore, complainant's
initiation of contact with an EEO Counselor on February 6, 2004 with
regard to the alleged harassment in Uzbekistan from April 28, 2003 through
October 2003 was after the expiration of the 45-day limitation period.
Legal Analysis:
the Commission. The
agency stated that complainant reported to the Davis-Monthan Air Force
Base on or about October 27, 2003, and that except for a few hours of
vacation leave taken, he was at work from November 7, 2003 until his
initial EEO contact in February 2004. The agency concluded that the
fact that complainant sought legal advice and corresponded with the
Commission does not extend the time limit for contacting an EEO Counselor.
On appeal, complainant contends that he was unaware that he had to
file his complaint with the agency before pursuing a complaint with the
Commission. Complainant states that the reasons for his untimely EEO
contact were that he was returning from a one-year overseas deployment,
a permanent change of station, relocating his family to the United States,
seeking legal advice, and corresponding with the Commission. Complainant
claims that the agency has allowed many of its employees to live off
base in various locations. Complainant states that he was threatened
with disciplinary action if he visited his wife after work hours.
In response, the agency asserts that it based its determination regarding
timeliness on complainant's permanent assignment at the Davis-Monthan
Air Force Base on or about October 27, 2003. The agency stated that
complainant's contact with an EEO Counselor on or about February 6, 2004,
was over 100 days after he arrived at the Davis-Monthan Air Force Base.
The agency asserts with regard to complainant's contention that he did
not know he had to file with the agency before the Commission that
complainant did not contact the Commission until January 25, 2004,
approximately 90 days after his arrival at the Davis-Monthan Air Force
Base. The agency asserts that complainant had constructive knowledge of
the 45-day limitation period and also direct knowledge as he attended
an EEO for Managers course that specifically addressed the 45 calendar
day requirement.
With regard to whether complainant was aware of the 45-day limitation
period, the agency maintains that under the doctrine of constructive
notice, complainant knew or should have known of the 45-day limitation
period. The record contains a declaration from the Human Resources
Manager at the Davis-Monthan Air Force Base Exchange. The Human Resources
Manager stated that an EEO poster setting forth the 45-day limitation
period was displayed on the employee bulletin board less than three feet
from complainant's office. The record contains a copy of that EEO poster.
We find that complainant had constructive notice of the 45-day limitation
period commencing when he began work at the Davis-Monthan Air Force
Base Exchange, on or about October 27, 2003. Therefore, complainant's
initiation of contact with an EEO Counselor on February 6, 2004 with
regard to the alleged harassment in Uzbekistan from April 28, 2003 through
October 2003 was after the expiration of the 45-day limitation period.
Upon review of the reasons presented by complainant for his untimely
EEO contact, we find that complainant has not submitted sufficient
justification for his failure to initiate contact with an EEO Counselor
in a timely fashion..
Final Decision:
Accordingly, the agency's decision dismissing complainant's complaint was proper pursuant to 29 C.F.R. § 1614.107(a)(2) and is AFFIRMED. | Larry J. Rozelle v. Department of Defense
01A44471
March 28, 2005
.
Larry J. Rozelle,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Army & Air Force Exchange Service)
Agency.
Appeal No. 01A44471
Agency No. 04.043
DECISION
Complainant , a Sales Area Manager, was stationed at an agency facility
in Uzbekistan. During his deployment in Uzbekistan, complainant married
a native of Uzbekistan. Complainant filed a formal EEO complaint dated
February 26, 2004, wherein he claimed that he was discriminated against on
the bases of his wife's national origin (Uzbek) and religion (Muslim) when
from April 28, 2003 through October 2003, he was subjected to harassment.
Specifically, complainant claimed that he was not allowed to visit his
wife off base after work hours. Complainant also claimed that he was
not paid for hours he was required to work.
By decision dated May 20, 2004, the agency dismissed the complaint on the
grounds that complainant failed to initiate contact with an EEO Counselor
in a timely manner. The agency determined that complainant initiated
contact with an EEO Counselor on February 6, 2004. The agency stated that
an EEO poster setting forth the 45-day limitation period for contacting an
EEO Counselor was posted on the employee bulletin board less than three
feet from complainant's office. The agency noted that complainant's
explanation for his untimely EEO contact was that he had just relocated
after being on a one year tour of duty and had a permanent change of
station move from Lackland Air Force Base to the Davis-Monthan Air Force
Base; he had to relocate his family from Uzbekistan to the United States;
and he sought legal advice and corresponded with the Commission. The
agency stated that complainant reported to the Davis-Monthan Air Force
Base on or about October 27, 2003, and that except for a few hours of
vacation leave taken, he was at work from November 7, 2003 until his
initial EEO contact in February 2004. The agency concluded that the
fact that complainant sought legal advice and corresponded with the
Commission does not extend the time limit for contacting an EEO Counselor.
On appeal, complainant contends that he was unaware that he had to
file his complaint with the agency before pursuing a complaint with the
Commission. Complainant states that the reasons for his untimely EEO
contact were that he was returning from a one-year overseas deployment,
a permanent change of station, relocating his family to the United States,
seeking legal advice, and corresponding with the Commission. Complainant
claims that the agency has allowed many of its employees to live off
base in various locations. Complainant states that he was threatened
with disciplinary action if he visited his wife after work hours.
In response, the agency asserts that it based its determination regarding
timeliness on complainant's permanent assignment at the Davis-Monthan
Air Force Base on or about October 27, 2003. The agency stated that
complainant's contact with an EEO Counselor on or about February 6, 2004,
was over 100 days after he arrived at the Davis-Monthan Air Force Base.
The agency asserts with regard to complainant's contention that he did
not know he had to file with the agency before the Commission that
complainant did not contact the Commission until January 25, 2004,
approximately 90 days after his arrival at the Davis-Monthan Air Force
Base. The agency asserts that complainant had constructive knowledge of
the 45-day limitation period and also direct knowledge as he attended
an EEO for Managers course that specifically addressed the 45 calendar
day requirement.
With regard to whether complainant was aware of the 45-day limitation
period, the agency maintains that under the doctrine of constructive
notice, complainant knew or should have known of the 45-day limitation
period. The record contains a declaration from the Human Resources
Manager at the Davis-Monthan Air Force Base Exchange. The Human Resources
Manager stated that an EEO poster setting forth the 45-day limitation
period was displayed on the employee bulletin board less than three feet
from complainant's office. The record contains a copy of that EEO poster.
We find that complainant had constructive notice of the 45-day limitation
period commencing when he began work at the Davis-Monthan Air Force
Base Exchange, on or about October 27, 2003. Therefore, complainant's
initiation of contact with an EEO Counselor on February 6, 2004 with
regard to the alleged harassment in Uzbekistan from April 28, 2003 through
October 2003 was after the expiration of the 45-day limitation period.
Upon review of the reasons presented by complainant for his untimely
EEO contact, we find that complainant has not submitted sufficient
justification for his failure to initiate contact with an EEO Counselor
in a timely fashion..
Accordingly, the agency's decision dismissing complainant's complaint
was proper pursuant to 29 C.F.R. § 1614.107(a)(2) and is AFFIRMED.
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
March 28, 2005
__________________
Date
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277 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A61427.txt | 01A61427.txt | TXT | text/plain | 9,776 | Timothy D. MacFarland, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency. | November 15, 2005 | Appeal Number: 01A61427
Complaint Allegations:
In his complaint, complainant alleged that he was subjected to discrimination on the bases of race (Caucasian) and reprisal for prior protected EEO activity when, on June 6, 2005, the Third Level Supervisor refused to discuss his claim of a hostile work environment. During this time, complainant received a proposed 90-day suspension on June 30, 2005, which eventually became effective on September 18, 2005. Complainant filed an appeal of the 90-day suspension with the Merit Systems Protection Board (MSPB) on October 13, 2005.
Case Facts:
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 15, 2005, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights Act
of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
On June 28, 2005, complainant contacted an EEO Counselor alleging that when
he went to speak with his Third Level Supervisor, to discuss alleged
harassment by a coworker (Black), the Supervisor was arrogant and
condescending. Complainant indicated that the Supervisor asked him if his
ex-wife was Black. The Supervisor alleged then stated that: "I figure she
was black, you blame all your problems on blacks." When the matter was not
resolved informally, complainant filed a formal EEO complaint on October
14, 2005. In his complaint, complainant alleged that he was subjected to
discrimination on the bases of race (Caucasian) and reprisal for prior
protected EEO activity when, on June 6, 2005, the Third Level Supervisor
refused to discuss his claim of a hostile work environment.
During this time, complainant received a proposed 90-day suspension on June
30, 2005, which eventually became effective on September 18, 2005.
Complainant filed an appeal of the 90-day suspension with the Merit Systems
Protection Board (MSPB) on October 13, 2005.
The agency defined complainant's EEO complaint as alleging discrimination
on the bases of race and reprisal when he was subjected to harassment in
order to set him up for the issuance of the 90-day suspension. The agency
determined that the complaint raised by complainant in his EEO complaint
was the same raised in his MSPB appeal. Therefore, the agency dismissed
the EEO complaint pursuant to 29 C.F.R. § 1614.107(a)(4), finding that
complainant had elected to pursue the suspension with an MSPB appeal, and
not by filing a mixed case complaint in the EEO process.
Complainant appealed asserting that the agency's dismissal was
inappropriate. He noted that the EEO complaint and the MSPB appeal
concerned separate matters. Specifically, he indicated that the MSPB
appeal involved the suspension and that the EEO complaint was based on
management's failure to investigate his claim of a hostile work
environment. The agency responded by requesting that the Commission affirm
the dismissal of the EEO complaint.
We find that the agency erred in defining complainant's EEO claim. We note
that a fair reading of complainant's formal complaint and the EEO
Counselor's report clearly indicates that the issue raised within the EEO
complaint was the Third Level Supervisor's actions when complainant
discussed his harassment claims with him. At no time did complainant
indicate that he wished to pursue his claim of discrimination based on the
suspension through the EEO process. Therefore, the claim at issue in
complainant's EEO complaint is as defined above, namely he was subjected to
discrimination on the bases of race and reprisal for prior protected EEO
activity when, on June 6, 2005, the Third Level Supervisor refused to
discuss his claim of a hostile work environment. As such, we find the
agency's dismissal of the complaint pursuant to at 29 C.F.R. §
1614.107(a)(4) to be inappropriate.
However, we find that the complaint should have been dismissed on other
grounds. The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides,
in relevant part, that an agency shall dismiss a complaint that fails to
state a claim. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v.
Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is
sufficiently severe or pervasive to alter the conditions of the
complainant's employment. The Court explained that an "objectively hostile
or abusive work environment [is created when] a reasonable person would
find [it] hostile or abusive:" and the complainant subjectively perceives
it as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment, a
claim of harassment is actionable only if, allegedly, the harassment to
which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
A complaint should not be dismissed for failure to state a claim unless it
appears beyond doubt that the complainant cannot prove a set of facts in
support of the claim which would entitle the complainant to relief. The
trier of fact must consider all of the alleged harassing incidents and
remarks, and considering them together in the light most favorable to the
complainant, determine whether they are sufficient to state a claim. Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
Legal Analysis:
the Commission affirm
the dismissal of the EEO complaint.
We find that the agency erred in defining complainant's EEO claim. We note
that a fair reading of complainant's formal complaint and the EEO
Counselor's report clearly indicates that the issue raised within the EEO
complaint was the Third Level Supervisor's actions when complainant
discussed his harassment claims with him. At no time did complainant
indicate that he wished to pursue his claim of discrimination based on the
suspension through the EEO process. Therefore, the claim at issue in
complainant's EEO complaint is as defined above, namely he was subjected to
discrimination on the bases of race and reprisal for prior protected EEO
activity when, on June 6, 2005, the Third Level Supervisor refused to
discuss his claim of a hostile work environment. As such, we find the
agency's dismissal of the complaint pursuant to at 29 C.F.R. §
1614.107(a)(4) to be inappropriate.
However, we find that the complaint should have been dismissed on other
grounds. The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides,
in relevant part, that an agency shall dismiss a complaint that fails to
state a claim. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v.
Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is
sufficiently severe or pervasive to alter the conditions of the
complainant's employment. The Court explained that an "objectively hostile
or abusive work environment [is created when] a reasonable person would
find [it] hostile or abusive:" and the complainant subjectively perceives
it as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment, a
claim of harassment is actionable only if, allegedly, the harassment to
which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
A complaint should not be dismissed for failure to state a claim unless it
appears beyond doubt that the complainant cannot prove a set of facts in
support of the claim which would entitle the complainant to relief. The
trier of fact must consider all of the alleged harassing incidents and
remarks, and considering them together in the light most favorable to the
complainant, determine whether they are sufficient to state a claim. Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
Upon review, although we find that the Third Level Supervisor's response to
complainant's inquiry was inappropriate, it is not sufficiently severe or
pervasive enough to state a claim of a hostile work environment. | Timothy D. MacFarland,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A61427
Agency No. DOT-2005-19713-FAA-01
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 15, 2005, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights Act
of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
On June 28, 2005, complainant contacted an EEO Counselor alleging that when
he went to speak with his Third Level Supervisor, to discuss alleged
harassment by a coworker (Black), the Supervisor was arrogant and
condescending. Complainant indicated that the Supervisor asked him if his
ex-wife was Black. The Supervisor alleged then stated that: "I figure she
was black, you blame all your problems on blacks." When the matter was not
resolved informally, complainant filed a formal EEO complaint on October
14, 2005. In his complaint, complainant alleged that he was subjected to
discrimination on the bases of race (Caucasian) and reprisal for prior
protected EEO activity when, on June 6, 2005, the Third Level Supervisor
refused to discuss his claim of a hostile work environment.
During this time, complainant received a proposed 90-day suspension on June
30, 2005, which eventually became effective on September 18, 2005.
Complainant filed an appeal of the 90-day suspension with the Merit Systems
Protection Board (MSPB) on October 13, 2005.
The agency defined complainant's EEO complaint as alleging discrimination
on the bases of race and reprisal when he was subjected to harassment in
order to set him up for the issuance of the 90-day suspension. The agency
determined that the complaint raised by complainant in his EEO complaint
was the same raised in his MSPB appeal. Therefore, the agency dismissed
the EEO complaint pursuant to 29 C.F.R. § 1614.107(a)(4), finding that
complainant had elected to pursue the suspension with an MSPB appeal, and
not by filing a mixed case complaint in the EEO process.
Complainant appealed asserting that the agency's dismissal was
inappropriate. He noted that the EEO complaint and the MSPB appeal
concerned separate matters. Specifically, he indicated that the MSPB
appeal involved the suspension and that the EEO complaint was based on
management's failure to investigate his claim of a hostile work
environment. The agency responded by requesting that the Commission affirm
the dismissal of the EEO complaint.
We find that the agency erred in defining complainant's EEO claim. We note
that a fair reading of complainant's formal complaint and the EEO
Counselor's report clearly indicates that the issue raised within the EEO
complaint was the Third Level Supervisor's actions when complainant
discussed his harassment claims with him. At no time did complainant
indicate that he wished to pursue his claim of discrimination based on the
suspension through the EEO process. Therefore, the claim at issue in
complainant's EEO complaint is as defined above, namely he was subjected to
discrimination on the bases of race and reprisal for prior protected EEO
activity when, on June 6, 2005, the Third Level Supervisor refused to
discuss his claim of a hostile work environment. As such, we find the
agency's dismissal of the complaint pursuant to at 29 C.F.R. §
1614.107(a)(4) to be inappropriate.
However, we find that the complaint should have been dismissed on other
grounds. The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides,
in relevant part, that an agency shall dismiss a complaint that fails to
state a claim. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v.
Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is
sufficiently severe or pervasive to alter the conditions of the
complainant's employment. The Court explained that an "objectively hostile
or abusive work environment [is created when] a reasonable person would
find [it] hostile or abusive:" and the complainant subjectively perceives
it as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment, a
claim of harassment is actionable only if, allegedly, the harassment to
which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
A complaint should not be dismissed for failure to state a claim unless it
appears beyond doubt that the complainant cannot prove a set of facts in
support of the claim which would entitle the complainant to relief. The
trier of fact must consider all of the alleged harassing incidents and
remarks, and considering them together in the light most favorable to the
complainant, determine whether they are sufficient to state a claim. Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
Upon review, although we find that the Third Level Supervisor's response to
complainant's inquiry was inappropriate, it is not sufficiently severe or
pervasive enough to state a claim of a hostile work environment.
Accordingly, we affirm the final agency decision dismissing the complaint
albeit on other grounds.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
August 3, 2006
__________________
Date | [
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278 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A12884_r.txt | 01A12884_r.txt | TXT | text/plain | 7,256 | Kenneth L. Varley v. Department of Veterans Affairs 01A12884 June 29, 2001 . Kenneth L. Varley, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency. | June 29, 2001 | Appeal Number: 01A12884
Case Facts:
Legal Analysis:
Upon review, the Commission finds that the complaint was properly
dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO
Counselor contact. The record shows that complainant sought EEO
counseling on December 6, 2000, claiming that he had been discriminated
against on the basis of age when he was denied the opportunity to
receive a buy out and he retired on September 1, 2000. During the EEO
Counselor's inquiry of complainant's informal complaint, complainant
stated that on March 17, 2000, he requested the buy out and followed
up on his request in the months that followed. Complainant further
claimed that he retired on September 1, 2000, and that after further
considering the matter, he felt he should have received a response.
Finally, complainant stated that he contacted the Commission on October
25, 2000. Subsequently, complainant filed a formal complaint claiming
that he had been discriminated against from March 17, 2000 through
September 1, 2000, when he was denied a buy out.
The agency dismissed the complaint on the basis of untimely EEO Counselor
contact. On appeal, complainant contends that he was unaware of the
45-day time limit because: (1) the EEO training he received was held
twenty months before his initial EEO Counselor contact; (2) he never
used the entrance where the bulletin board is located; (3) although he
had contact with EEO during his employment, he never became an expert
with technical knowledge.
In response to the appeal, the agency has provided several affidavits
which indicate that an EEO poster with applicable time limits was
on display at the facility where complainant worked during the times
in question.
The Commission has consistently held that where there is an issue of
timeliness, the agency always bears the burden of obtaining sufficient
information to support a reasoned determination as to timeliness.
Williams v. Department of Defense, EEOC Request No. 05920506 (August 25,
1992). Regarding the instant complaint, the agency has met its burden.
The record shows that in support of its contention that complainant was,
or should have been, aware of the 45-day time limit, the agency includes
an affidavit issued by the EEO Manager which states that an EEO poster
indicating the time limit for initiating EEO contact was on display at
the facility where complainant worked during the times in question.
Therefore, we find that the agency has provided evidence sufficient
to support application of a constructive notice rule. Pride v. USPS,
EEOC Request No. 05930134 (August 19, 1993).
The record discloses that the alleged discriminatory event occurred on
September 1, 2000, but that complainant did not initiate contact with
an EEO Counselor until December 6, 2000, which is beyond the forty-five
(45) day limitation period. Moreover, even if we were to assume arguendo,
that complainant's October 25, 2000 contact with the Commission were the
initial EEO contact, this action was also beyond the 45-day time limit;
in order to be considered a timely EEO contact, complainant should
have sought EEO counseling no later than October 16, 2000. On appeal,
no persuasive arguments or evidence have been presented to warrant an
extension of the time limit for initiating EEO contact.
Final Decision:
Accordingly, the agency's final decision dismissing the complaint is AFFIRMED. | Kenneth L. Varley v. Department of Veterans Affairs
01A12884
June 29, 2001
.
Kenneth L. Varley,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A12884
Agency No. 2001-2862
DECISION
Upon review, the Commission finds that the complaint was properly
dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO
Counselor contact. The record shows that complainant sought EEO
counseling on December 6, 2000, claiming that he had been discriminated
against on the basis of age when he was denied the opportunity to
receive a buy out and he retired on September 1, 2000. During the EEO
Counselor's inquiry of complainant's informal complaint, complainant
stated that on March 17, 2000, he requested the buy out and followed
up on his request in the months that followed. Complainant further
claimed that he retired on September 1, 2000, and that after further
considering the matter, he felt he should have received a response.
Finally, complainant stated that he contacted the Commission on October
25, 2000. Subsequently, complainant filed a formal complaint claiming
that he had been discriminated against from March 17, 2000 through
September 1, 2000, when he was denied a buy out.
The agency dismissed the complaint on the basis of untimely EEO Counselor
contact. On appeal, complainant contends that he was unaware of the
45-day time limit because: (1) the EEO training he received was held
twenty months before his initial EEO Counselor contact; (2) he never
used the entrance where the bulletin board is located; (3) although he
had contact with EEO during his employment, he never became an expert
with technical knowledge.
In response to the appeal, the agency has provided several affidavits
which indicate that an EEO poster with applicable time limits was
on display at the facility where complainant worked during the times
in question.
The Commission has consistently held that where there is an issue of
timeliness, the agency always bears the burden of obtaining sufficient
information to support a reasoned determination as to timeliness.
Williams v. Department of Defense, EEOC Request No. 05920506 (August 25,
1992). Regarding the instant complaint, the agency has met its burden.
The record shows that in support of its contention that complainant was,
or should have been, aware of the 45-day time limit, the agency includes
an affidavit issued by the EEO Manager which states that an EEO poster
indicating the time limit for initiating EEO contact was on display at
the facility where complainant worked during the times in question.
Therefore, we find that the agency has provided evidence sufficient
to support application of a constructive notice rule. Pride v. USPS,
EEOC Request No. 05930134 (August 19, 1993).
The record discloses that the alleged discriminatory event occurred on
September 1, 2000, but that complainant did not initiate contact with
an EEO Counselor until December 6, 2000, which is beyond the forty-five
(45) day limitation period. Moreover, even if we were to assume arguendo,
that complainant's October 25, 2000 contact with the Commission were the
initial EEO contact, this action was also beyond the 45-day time limit;
in order to be considered a timely EEO contact, complainant should
have sought EEO counseling no later than October 16, 2000. On appeal,
no persuasive arguments or evidence have been presented to warrant an
extension of the time limit for initiating EEO contact. Accordingly,
the agency's final decision dismissing the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
June 29, 2001
__________________
Date
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"42 U.S.C. § 2000e",
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279 | https://www.eeoc.gov/sites/default/files/decisions/2024_11_15/2024002114.pdf | 2024002114.pdf | PDF | application/pdf | 18,885 | Herb F .,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury, Agency. | February 7, 2024 | Appeal Number: 2024002114
Background:
During the period at issue, Complainant worked for the Agency as a Tax
Examining Technician in Florence, Kentucky . On January 24, 2024 ,
Complainant filed a formal complaint alleging that the Agency subjected him
1 This case has been randomly assigned a pseudonym which will replace
Complainant’s name when the decision is published to non- parties and the
Commission’s website.
2 2024002114
to discrimination based on sex (male) and in reprisal for prior protected EEO
activity .
In its final decision, the Agency framed Complainant’s claims in the following
fashion:
Whether Complainant was discriminated against, including harassment,
based on sex (male) and in reprisal for prior protected activity when:
1. From June 3 -July 4, 2022, management denied Complainant’s
request to be moved to a work area outside of the mailroom.
2. On May 4, 2023, Complainant was issued a letter of
admonishment for his involvement in a workplace disruption.
3. On an unspecified date, the results of a Treasury Inspector
General for Tax Administration (TIGTA) investigation into
Complainant’s workplace concerns were delayed.
The Agency dismissed claim s (1) and (2) for untimely EEO Counselor contact.
The Agency reasoned that Complainant initiated EEO contact on October 24, 2023, outside of the applicable time limit.
The Agency dismissed claim (3) for failure to state a claim reasoning that this matter was a collateral attack on the TIGTA’s investigative process.
The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant requests that we reverse the Agency’s dismissal of his complaint. Complainant asserts that he initially contacted the Agency’s EEO Office via email on March 22, 2023, within 45 days of receiving a notice of disciplinary action from the Agency in March 2023. Complainant also references, on appeal , additional actions by the Agency.
In response, the Agency requests that we affirm its final decision dismissing Complainant’s complaint. The Agency asserts that even if Complainant initiated EEO contact on March 22, 2023, claim (1) should still be dismissed for untimely EEO Counselor contact. Regarding claim (2), the Agency asserts that “[Complainant] waited more than five months before bringing this claim
to the attention of an EEO Counselor…[E]ven if [Complainant] was waiting for
3 2024002114
a response from EEO regarding his original claim, he had responsibility to raise
claim (2) to an EEO Counselor within 45 days of occurrence.” Agency Brief at 3. Regarding claim (3), the Agency reiterates that the proper forum for
Complainant to raise this matter is within the TIGTA process, rather than the
EEO forum.
STANDARD OF REVIEW
The Agency’s decision to dismiss a complaint is subject to de novo review by
the Commission, which requires the Commission to examine the record without regard to the factual and legal determinations of the previous decision maker and issue its decision based on the Commission’s own assessment of the record and its inter pretation of the law. 29 C.F.R. § 1614.405(a). The
Commission should construe the complaint in the light most favorable to the complainant and take the complaint’s allegations as true. See Cobb v.
Department of the Treasury , EEOC Request No. 05970077 (March 13, 1997).
Thus, all reasonable inferences that may be drawn from the complaint’s allegations must be made in favor of the complainant.
Legal Analysis:
the Commission, which requires the Commission to examine the record without regard to the factual and legal determinations of the previous decision maker and issue its decision based on the Commission’s own assessment of the record and its inter pretation of the law. 29 C.F.R. § 1614.405(a). The
Commission should construe the complaint in the light most favorable to the complainant and take the complaint’s allegations as true. See Cobb v.
Department of the Treasury , EEOC Request No. 05970077 (March 13, 1997).
Thus, all reasonable inferences that may be drawn from the complaint’s allegations must be made in favor of the complainant.
ANALYSIS
Claim (3) -Delay in Result of TIGTA Investigation
To the extent Complainant was alleging that there was a delay in hi s receipt
of results from a TIGTA investigation, we find that the Agency properly
dismissed this matter for being a collateral attack on the TIGTA process. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep’t of Def.,
EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv. ,
EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv.,
EEOC Request No. 05930106 (June 25, 1993). The proper forum for
Complainant to have raised his challenges to actions which occurred as part of the TIGTA investigative process is within that forum itself, rather th an the
EEO process.
Remainder of Complaint -Dismissal for Untimely EEO Counselor Contact
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty- five (45) days of the date of the matter
alleged to be discriminatory or, in the case of a personnel action, within forty -
five (45) days of the effective date of the action.
4 2024002114
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty -five (45) day
limitation period is triggered. See Howard v. Dep’t of the Navy, EEOC Request
No. 05970852 (Feb. 11, 1999). Thus, 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.
EEOC Regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known tha t the discriminatory matter or personnel
action occurred, that despite due diligence he was prevented by circumstances
beyond his control from contacting the Counselor within the time limits, or for
other reasons considered sufficient by the agency or the Commission.
The Agency improperly dismissed the remainder of Complainant’s complaint.
As an initial matter, we find that the Agency erred in finding that Complainant initiated EEO contact on October 24, 2023. Complainant, in his formal complaint, asserts that he initiated EEO contact on March 22, 2023.
Complaint File at 161.3 Complainant states that after receiving no response,
he contacted EEO again for an update on October 24, 2023. Id . Moreover,
the record contains an email from Complainant dated March 22, 2023, to the
Agency’s EEO Office. Complaint File at 180- 183. Therein, Complainant sets
forth that he is being subjected to a hostile work environment and stated
numerous incidents including receiving an Alternative Discipline Notice on
March 13, 2023. Based on the foregoing, we find that Complainant initiated EEO contact on March 22, 2023.
We further find that the Agency improperly dismissed a portion of Complainant’s complaint for untimely EEO Counselor contact. The Agency improperly fragmented Complainant’s claims, we find that Complainant is alleging one hostile work environment claim.
2 The Contact Intake Form and the EEO Counselor’s Report also set forth that
Complainant initially contacted the EEO Office on March 22, 2023, via email .
Complaint File at 133, 155.
3 Our citations to the complaint file reference the page number of the pdf file
before us on appeal.
5 2024002114
Complainant’s initial EEO contact on March 22, 2023, listed various incidents
comprising his hostile work environment claim , including receiving an
Alternative Discipline Notice on March 13, 2023.4 Complaint File at 175, 180.
Complainant also alleged that from June 3, 2022- July 4, 2022, Agency
management officials refused to move him away from an employee who was behaving in an aggressive/threatening man ner. Complaint File at 181 -182.
In his follow -up EEO contact in October 2023, Complainant alleges that he
received a letter of admonishment. Complaint File at 123, 177.
Complainant timely initiated EEO contact on March 22, 2023 regarding his
hostile work environment claim. The Commission has held that “[b]ecause
the incidents that make up a hostile work environment claim ‘collectively
constitute one unlawful employment practice,’ the entire claim is actionable
as long as at least one incident that is part of the claim occurr ed within the
filing period. This includes incidents that occurred outside of the filing period that [Complainant] knew or should have known were act ionable at the time
of the occurrence.” EEOC Compliance Manual, Section 2, Threshold Issues at 2-75 (rev. July 21, 2005) (citing National Railroad Passenger Corp v. Morgan ,
536 U.S. 101, 117 (2002)). Complainant received the March 13, 2023
Alternative Discipline Notice within the 45 days preceding Complainant’s EEO contact on March 22, 2023; thus, Complainant’s entire hostile work
environment claim is actionable.
To the extent that Complainant, on appeal, is seeking to add incidents to his
complaint that were not previously raised below, he should contact the Agency’s EEO Director, in writing, and ask to amend his complaint. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) Chapter 5, Section III.B. (rev. Aug. 5, 2015). | Herb F .,1
Complainant,
v.
Janet L. Yellen,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 2024002114
Agency No. IRS -24-0081
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from the Agency's final decision dated
February 7, 2024, dismissing a formal complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the reasons set forth herein, we MODIFY the Agency’s final decision dismissing Complainant’s complaint.
ISSUES PRESENTED
Whether the Agency properly dismissed the formal complaint on procedural
grounds .
BACKGROUND
During the period at issue, Complainant worked for the Agency as a Tax
Examining Technician in Florence, Kentucky . On January 24, 2024 ,
Complainant filed a formal complaint alleging that the Agency subjected him
1 This case has been randomly assigned a pseudonym which will replace
Complainant’s name when the decision is published to non- parties and the
Commission’s website.
2 2024002114
to discrimination based on sex (male) and in reprisal for prior protected EEO
activity .
In its final decision, the Agency framed Complainant’s claims in the following
fashion:
Whether Complainant was discriminated against, including harassment,
based on sex (male) and in reprisal for prior protected activity when:
1. From June 3 -July 4, 2022, management denied Complainant’s
request to be moved to a work area outside of the mailroom.
2. On May 4, 2023, Complainant was issued a letter of
admonishment for his involvement in a workplace disruption.
3. On an unspecified date, the results of a Treasury Inspector
General for Tax Administration (TIGTA) investigation into
Complainant’s workplace concerns were delayed.
The Agency dismissed claim s (1) and (2) for untimely EEO Counselor contact.
The Agency reasoned that Complainant initiated EEO contact on October 24, 2023, outside of the applicable time limit.
The Agency dismissed claim (3) for failure to state a claim reasoning that this matter was a collateral attack on the TIGTA’s investigative process.
The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant requests that we reverse the Agency’s dismissal of his complaint. Complainant asserts that he initially contacted the Agency’s EEO Office via email on March 22, 2023, within 45 days of receiving a notice of disciplinary action from the Agency in March 2023. Complainant also references, on appeal , additional actions by the Agency.
In response, the Agency requests that we affirm its final decision dismissing Complainant’s complaint. The Agency asserts that even if Complainant initiated EEO contact on March 22, 2023, claim (1) should still be dismissed for untimely EEO Counselor contact. Regarding claim (2), the Agency asserts that “[Complainant] waited more than five months before bringing this claim
to the attention of an EEO Counselor…[E]ven if [Complainant] was waiting for
3 2024002114
a response from EEO regarding his original claim, he had responsibility to raise
claim (2) to an EEO Counselor within 45 days of occurrence.” Agency Brief at 3. Regarding claim (3), the Agency reiterates that the proper forum for
Complainant to raise this matter is within the TIGTA process, rather than the
EEO forum.
STANDARD OF REVIEW
The Agency’s decision to dismiss a complaint is subject to de novo review by
the Commission, which requires the Commission to examine the record without regard to the factual and legal determinations of the previous decision maker and issue its decision based on the Commission’s own assessment of the record and its inter pretation of the law. 29 C.F.R. § 1614.405(a). The
Commission should construe the complaint in the light most favorable to the complainant and take the complaint’s allegations as true. See Cobb v.
Department of the Treasury , EEOC Request No. 05970077 (March 13, 1997).
Thus, all reasonable inferences that may be drawn from the complaint’s allegations must be made in favor of the complainant.
ANALYSIS
Claim (3) -Delay in Result of TIGTA Investigation
To the extent Complainant was alleging that there was a delay in hi s receipt
of results from a TIGTA investigation, we find that the Agency properly
dismissed this matter for being a collateral attack on the TIGTA process. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep’t of Def.,
EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv. ,
EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv.,
EEOC Request No. 05930106 (June 25, 1993). The proper forum for
Complainant to have raised his challenges to actions which occurred as part of the TIGTA investigative process is within that forum itself, rather th an the
EEO process.
Remainder of Complaint -Dismissal for Untimely EEO Counselor Contact
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty- five (45) days of the date of the matter
alleged to be discriminatory or, in the case of a personnel action, within forty -
five (45) days of the effective date of the action.
4 2024002114
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty -five (45) day
limitation period is triggered. See Howard v. Dep’t of the Navy, EEOC Request
No. 05970852 (Feb. 11, 1999). Thus, 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.
EEOC Regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known tha t the discriminatory matter or personnel
action occurred, that despite due diligence he was prevented by circumstances
beyond his control from contacting the Counselor within the time limits, or for
other reasons considered sufficient by the agency or the Commission.
The Agency improperly dismissed the remainder of Complainant’s complaint.
As an initial matter, we find that the Agency erred in finding that Complainant initiated EEO contact on October 24, 2023. Complainant, in his formal complaint, asserts that he initiated EEO contact on March 22, 2023.
Complaint File at 161.3 Complainant states that after receiving no response,
he contacted EEO again for an update on October 24, 2023. Id . Moreover,
the record contains an email from Complainant dated March 22, 2023, to the
Agency’s EEO Office. Complaint File at 180- 183. Therein, Complainant sets
forth that he is being subjected to a hostile work environment and stated
numerous incidents including receiving an Alternative Discipline Notice on
March 13, 2023. Based on the foregoing, we find that Complainant initiated EEO contact on March 22, 2023.
We further find that the Agency improperly dismissed a portion of Complainant’s complaint for untimely EEO Counselor contact. The Agency improperly fragmented Complainant’s claims, we find that Complainant is alleging one hostile work environment claim.
2 The Contact Intake Form and the EEO Counselor’s Report also set forth that
Complainant initially contacted the EEO Office on March 22, 2023, via email .
Complaint File at 133, 155.
3 Our citations to the complaint file reference the page number of the pdf file
before us on appeal.
5 2024002114
Complainant’s initial EEO contact on March 22, 2023, listed various incidents
comprising his hostile work environment claim , including receiving an
Alternative Discipline Notice on March 13, 2023.4 Complaint File at 175, 180.
Complainant also alleged that from June 3, 2022- July 4, 2022, Agency
management officials refused to move him away from an employee who was behaving in an aggressive/threatening man ner. Complaint File at 181 -182.
In his follow -up EEO contact in October 2023, Complainant alleges that he
received a letter of admonishment. Complaint File at 123, 177.
Complainant timely initiated EEO contact on March 22, 2023 regarding his
hostile work environment claim. The Commission has held that “[b]ecause
the incidents that make up a hostile work environment claim ‘collectively
constitute one unlawful employment practice,’ the entire claim is actionable
as long as at least one incident that is part of the claim occurr ed within the
filing period. This includes incidents that occurred outside of the filing period that [Complainant] knew or should have known were act ionable at the time
of the occurrence.” EEOC Compliance Manual, Section 2, Threshold Issues at 2-75 (rev. July 21, 2005) (citing National Railroad Passenger Corp v. Morgan ,
536 U.S. 101, 117 (2002)). Complainant received the March 13, 2023
Alternative Discipline Notice within the 45 days preceding Complainant’s EEO contact on March 22, 2023; thus, Complainant’s entire hostile work
environment claim is actionable.
To the extent that Complainant, on appeal, is seeking to add incidents to his
complaint that were not previously raised below, he should contact the Agency’s EEO Director, in writing, and ask to amend his complaint. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) Chapter 5, Section III.B. (rev. Aug. 5, 2015).
CONCLUSION
Accordingly, we AFFIRM the Agency’s dismissal of claim (3). However, we REVERSE the Agency’s dismissal of the remainder of Complainant’s complaint, defined herein as a hostile work environment claim, and we REMAND this matter to the Agency for further processing in accordance with the Order below.
4 The Alternative Discipline Notice set s forth that Agency management was
considering placing Complainant on a three -day suspension.
6 2024002114
ORDER (E0 224)
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 was issued. 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 was issued, unless the matter is otherwise resolved pr ior 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.
As provided in the statement entitled “Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, or a copy of the final agency decision (“FAD”) if Complainant does not request a hearing.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days
of the completion of each ordered corrective action, the Agency shall submit
via the Federal Sector EEO Portal (F edSEP) supporting documents in the digital
format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance repor t in
the digital format required by the Commission. See 29 C.F.R. § 1614.403(g).
The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative.
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 Commiss ion’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.
7 2024002114
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.
Failure by an agency to either file a compliance report or implement any of
the orders set forth in this decision, without good cause shown, may result in
the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0124.1)
The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this
decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration . A party shall have
twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD -110), at Chap. 9 § VII.B (Aug. 5, 2015).
Complainant should submit their request for reconsideration, and any statement or brief in support of their request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx
8 2024002114
Alternatively, Complainant can submit their request and arguments to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five
days of the expiration of the applicable filing period. See 29 C.F.R. §
1614.604.
An agency’s request for reconsideration must be submitted in digital format
via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files their request via the EEOC Public Portal, in which case no proof of service is require d.
Failure to file within the 30 -day time period will result in dismissal of the
party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting
documentation must be submitted together with the 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(f).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (T0124)
This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 their 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.
9 2024002114
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to
do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an
attorney to represent you in the civil action, you may request the court to
appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant o r deny these
types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden’s si
Carlton M. Hadden, Director
Office of Federal Operations
October 15, 2024
Date | [
"Cobb v. Department of the Treasury , EEOC Request No. 05970077 (March 13, 1997)",
"Wills v. Dep’t of Def., EEOC Request No. 05970596 (July 30, 1998)",
"Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994)",
"Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993)",
"Howa... | [
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280 | https://www.eeoc.gov/sites/default/files/decisions/2021_08_31/2020003085.pdf | 2020003085.pdf | PDF | application/pdf | 18,418 | Ellan C .,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Federal Law Enforcement Training Center), Agency. | April 9, 2020 | Appeal Number: 2020003085
Background:
At the time of events giving rise to this complaint, was a student of the Agency’s Uniformed Police Training Program (UPTP) at the Federal Law Enforcement Training Center (FLETC)
located in Glynco, Georgia . She was also employed as a Law Enforcement Specialist, GS -1801-
5, at the Agency’s National Protection and Program Directorate (NPPD). The EEO Counselor’s
report indicates that Complainant contacted the EEO Counselor on March 21, 2017.
Report of Invest igation (ROI) at 16. The Counselor’s report also notes that Complainant stated
that she tried to contact the DHS’s EEO Office by phone on March 23, 24, and 27, 2017.
Subsequently, on April 5, 2017, Complainant contacted the EEO Office for the Agency’s FLETC. Id. at 17.
On September 7, 2017, Complainant filed a formal complaint alleging that the Agency subjected
her to discrimination on the basis of sex (female) when:
1. She was expelled from the Physical Security Training Program (PSTP) class at FLETC
on January 31, 2017; and
2. Her employment as a Law Enforcement Specialist was terminated on February 8, 2017.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
On January 6, 2020, the Agency filed a Motion to Dismiss the complaint for untimely EEO Counselor contact. On January 13, 2020, the parties appeared before the AJ by telephone for a pre-hearing conference. In a post -conference order issued on January 13, 2020, the AJ granted
Complainant until January 31, 2020, to respond to the Agency’s Motion. Complainant timely filed an Op position to the Agency’s Motion to Dismiss.
The AJ found that the alleged discriminatory acts took place on January 31, 2017, the date of Complainant’s expulsion from FLETC; and February 8, 2017, the date of Complainant’s removal
from the FPS. According to the AJ, as required by 29 C.F.R. § 1614.105(a)(1), Complainant had
until March 25, 2017 to contact an EEO counselor . Noting that March 25, 2017, fell on a
Saturday, the AJ observed that even if the time limit was extended to the next business day (Monday, March 27, 2017), Complainant’s April 5, 2017 was still untimely.
Complainant, reasoned the AJ, was informed of the 45- day time limit in her Welcome Packet,
handbook, and termination letter. As for Complainant’s argument that her contact with anothe r
office was timely, the AJ stated the argument was misplaced. The AJ reasoned that where a
complainant is provided clear procedural instructions regarding how and when to contact the
Agency’s EEO office, a failure to follow such instructions renders atte mpted contact insufficient.
On March 4, 2021, the Agency issued its Final Action fully implementing the AJ’s decision,
procedurally dismissing the complaint pursuant to 29 C.F.R § 1614.110(a).
CONTENTIONS ON APPEAL
On appeal, Complainant requests that the Agency’s Final Decision implementing the AJ’s decision dismissing her complaint be reversed because she timely initiated EEO contact within
45 days. Complainant argues that she timely initiated EEO counselor contact when she contacted
the Office of Civil Rights and Civil Liberties, Equal Employment Opportunity and Diversity Division on March 21, 2017, after obtaining the phone number from the Agency’s website . As
noted above, Complainant asserts she made additional calls and left voicemails on March 23, 24,
and 27, 2017. On an unspecified date, Complainant explains that she was contacted by the Agency’s EEO office and directed to contact the FPS Complaints Manager. She did so on April
5, 2017, and was directed to t he FLETC EEO office .
In its Appeal Brief, the Agency requests that we affirm the dismissal of Complainant’s complaint because Complainant failed to contact an EEO counselor within 45 days of either her expulsion or her termination. With respect to claim (1), the Agency argues that Complainant should have
contacted the EEO Counselor by March 17, 2017, forty- five days after the January 31, 2017
expulsion. Additionally, the Agency reiterates its belief that Complainant’s March 21, 2017
phone call was insuff icient to constitute EEO contact, with regard to either claim, because she
had been previously given contact information for the correct Agency EEO office.
STANDARD OF REVIEW
In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions,
and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that
a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”);
see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo) . This essentially means that we should look at this case with fresh eyes. In other words,
we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual
conclusions and legal analysis – including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal employment
discrimination statute was violated. See id. at Chapter 9, § VI.A. (explaining that the de novo
standard of review “requires that the Commission examine the record without regard to the
factual and legal determinations of the previous decision maker,” and that EEOC “review the
documents, statements, and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decis ion based on the Commission’s own assessment of the record
and its interpretation of the law”).
Legal Analysis:
the Commission VACATES the Agency’s final order.
BACKGROUND
At the time of events giving rise to this complaint, was a student of the Agency’s Uniformed Police Training Program (UPTP) at the Federal Law Enforcement Training Center (FLETC)
located in Glynco, Georgia . She was also employed as a Law Enforcement Specialist, GS -1801-
5, at the Agency’s National Protection and Program Directorate (NPPD). The EEO Counselor’s
report indicates that Complainant contacted the EEO Counselor on March 21, 2017.
Report of Invest igation (ROI) at 16. The Counselor’s report also notes that Complainant stated
that she tried to contact the DHS’s EEO Office by phone on March 23, 24, and 27, 2017.
Subsequently, on April 5, 2017, Complainant contacted the EEO Office for the Agency’s FLETC. Id. at 17.
On September 7, 2017, Complainant filed a formal complaint alleging that the Agency subjected
her to discrimination on the basis of sex (female) when:
1. She was expelled from the Physical Security Training Program (PSTP) class at FLETC
on January 31, 2017; and
2. Her employment as a Law Enforcement Specialist was terminated on February 8, 2017.
At the | Ellan C .,1
Complainant,
v.
Alejandro N. Mayorkas,
Secretary,
Department of Homeland Security
(Federal Law Enforcement Training Center),
Agency.
Appeal No. 2020003085
Hearing No. 520-2019-00503X
Agency No. HS- HQ-019982017
DECISION
JURISDICTION
On April 9, 2020, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 4, 2020 final order concerning her equal employment opportunity (EEO) complain t
alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Commission VACATES the Agency’s final order.
BACKGROUND
At the time of events giving rise to this complaint, was a student of the Agency’s Uniformed Police Training Program (UPTP) at the Federal Law Enforcement Training Center (FLETC)
located in Glynco, Georgia . She was also employed as a Law Enforcement Specialist, GS -1801-
5, at the Agency’s National Protection and Program Directorate (NPPD). The EEO Counselor’s
report indicates that Complainant contacted the EEO Counselor on March 21, 2017.
Report of Invest igation (ROI) at 16. The Counselor’s report also notes that Complainant stated
that she tried to contact the DHS’s EEO Office by phone on March 23, 24, and 27, 2017.
Subsequently, on April 5, 2017, Complainant contacted the EEO Office for the Agency’s FLETC. Id. at 17.
On September 7, 2017, Complainant filed a formal complaint alleging that the Agency subjected
her to discrimination on the basis of sex (female) when:
1. She was expelled from the Physical Security Training Program (PSTP) class at FLETC
on January 31, 2017; and
2. Her employment as a Law Enforcement Specialist was terminated on February 8, 2017.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
On January 6, 2020, the Agency filed a Motion to Dismiss the complaint for untimely EEO Counselor contact. On January 13, 2020, the parties appeared before the AJ by telephone for a pre-hearing conference. In a post -conference order issued on January 13, 2020, the AJ granted
Complainant until January 31, 2020, to respond to the Agency’s Motion. Complainant timely filed an Op position to the Agency’s Motion to Dismiss.
The AJ found that the alleged discriminatory acts took place on January 31, 2017, the date of Complainant’s expulsion from FLETC; and February 8, 2017, the date of Complainant’s removal
from the FPS. According to the AJ, as required by 29 C.F.R. § 1614.105(a)(1), Complainant had
until March 25, 2017 to contact an EEO counselor . Noting that March 25, 2017, fell on a
Saturday, the AJ observed that even if the time limit was extended to the next business day (Monday, March 27, 2017), Complainant’s April 5, 2017 was still untimely.
Complainant, reasoned the AJ, was informed of the 45- day time limit in her Welcome Packet,
handbook, and termination letter. As for Complainant’s argument that her contact with anothe r
office was timely, the AJ stated the argument was misplaced. The AJ reasoned that where a
complainant is provided clear procedural instructions regarding how and when to contact the
Agency’s EEO office, a failure to follow such instructions renders atte mpted contact insufficient.
On March 4, 2021, the Agency issued its Final Action fully implementing the AJ’s decision,
procedurally dismissing the complaint pursuant to 29 C.F.R § 1614.110(a).
CONTENTIONS ON APPEAL
On appeal, Complainant requests that the Agency’s Final Decision implementing the AJ’s decision dismissing her complaint be reversed because she timely initiated EEO contact within
45 days. Complainant argues that she timely initiated EEO counselor contact when she contacted
the Office of Civil Rights and Civil Liberties, Equal Employment Opportunity and Diversity Division on March 21, 2017, after obtaining the phone number from the Agency’s website . As
noted above, Complainant asserts she made additional calls and left voicemails on March 23, 24,
and 27, 2017. On an unspecified date, Complainant explains that she was contacted by the Agency’s EEO office and directed to contact the FPS Complaints Manager. She did so on April
5, 2017, and was directed to t he FLETC EEO office .
In its Appeal Brief, the Agency requests that we affirm the dismissal of Complainant’s complaint because Complainant failed to contact an EEO counselor within 45 days of either her expulsion or her termination. With respect to claim (1), the Agency argues that Complainant should have
contacted the EEO Counselor by March 17, 2017, forty- five days after the January 31, 2017
expulsion. Additionally, the Agency reiterates its belief that Complainant’s March 21, 2017
phone call was insuff icient to constitute EEO contact, with regard to either claim, because she
had been previously given contact information for the correct Agency EEO office.
STANDARD OF REVIEW
In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions,
and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that
a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”);
see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo) . This essentially means that we should look at this case with fresh eyes. In other words,
we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual
conclusions and legal analysis – including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal employment
discrimination statute was violated. See id. at Chapter 9, § VI.A. (explaining that the de novo
standard of review “requires that the Commission examine the record without regard to the
factual and legal determinations of the previous decision maker,” and that EEOC “review the
documents, statements, and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decis ion based on the Commission’s own assessment of the record
and its interpretation of the law”).
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to c omply with the applicable time limits contained in
§1614.105, §1614.106 and §1614.204(c), unless the Agency extends the time limits in
accordance with §1614.604(c).
EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the
action. EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the Agency or t he Commission to
extend the time limit if Complainant can establish that Complainant was not aware of the time
limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond her control from contacting the EEO Counselor within the
time limit, or for other reasons considered sufficient by the Agency or Commission.
The record indicates that Complainant was info rmed of the 45- day time limit, as Complainant
herself acknowledges receiving the information at her orientation. Further, we find that Complainant initiated contact on March 21, 2017, when she called the phone number provided
by the Agency’s website for the Office of Civil Rights and Civil Liberties . Both the EEO
Counselor’s Report and the “Headquarters/FPS EEO Intake Form” identify March 21, 2017 as
the date of initial contact.
As for the Agency’s contention on appeal that this contact was insuff icient and Complainant was
required to contact the FLECTC EEO office, we disagree. We have consistently held that “a complainant may satisfy the criterion of Counselor contact by initiating [contact with] an agency
official logically connected with the EEO process, even if that official is not an
EEO Counselor.” Floyd v. National Guard Bureau, EEOC Request No. 05890086 (June 22,
1989). Here, by contacting the Agency’s Office of Civil Rights and Civil Liberties, instead of a
local, particular EEO office, we find that Complainant met her obligation in initiating the EEO
process. Therefore, we find that Complainant’s contact regarding her February 8, 2017
termination was timely.
As for the January 31, 2017 expulsion, Complainant argues on appeal that , because the
notification included an appeal process ,
2 she believed it to be merely a proposed action.
However, the Commission has consistently held that neither internal appeals nor informal efforts
to challenge an agency's adverse action, nor the filing of a grievance do not toll the running of the time limit to contact an EEO Counselor. See Hosford v. Department of Veterans Affairs ,
EEOC Request No. 05890038 (June 9, 1989); Miller v. United States Postal Service, EEOC
Request No. 05880835 (February 2, 1989).
2 The notice stated: “As outlined in the FLETC Directive/Manual . . . you may appeal my
decision to the Assistant Director . . ..” within ten days.”
As a result, Complainant’s contact regarding the expulsion was untimely. However, as the
expulsion was relied upon by the Agency in issuing her termination, the claim shall be
considered as background information.
CONCLUSION
Therefore, after a careful review of the record, including Complainant's arguments on appeal, the Agency's response, and arguments and evidence not specifically discussed in this decision, the Commission VACATES the Agency's final action and remands the matter to the Agency in
accordance with this decision and the Order below.
ORDER
The Agency is directed to submit a copy of the complaint file to the EEOC ’s New York District
Office Hearings Unit within fifteen (15) 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 complaint file has been transmitted to the Hearings Unit. Thereafter, the Administ rative Judge shall hold a hearing and issue a decision on the complaint in accordance
with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her repre sentative.
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 i n 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.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency.
STATEMENT OF RIGHTS - ON APPEA L
RECONSIDERATION (M0920)
The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be fil ed with EEOC’s Office of Federal Operations (OFO)
within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed to gether with the request for reconsideration . A party shall have twenty
(20) calendar days from receipt of another party’s request for reconsideration within which to
submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD -110), at Chap. 9 § VII.B
(Aug. 5, 2015).
Complainant should submit his or her request for reconsideration, and any statement or brief in
support of his or her request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx
Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, W ashington, DC 20013, or by certified mail addressed to 131 M Street, NE,
Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to
reconsider shall be deemed timely filed if OFO receives it by mail within five days of the
expiration of the applicable filing period. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request
and/or statement or brief in opposition must also include proof of service on the other party,
unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required.
Failure to file within the 30 -day time period w ill result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request.
Any supporting documentation must be submitted together with the 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 (R0610)
This is a decision requiring the Agency to continue its adm inistrative 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court t o appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
August 19, 2021
Date | [
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"Miller v. United States Postal Service, EEOC Request No. 05880835 (February 2, 1989)",
"29 C.F.R. § 1614.403(a)",
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281 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120082796.txt | 0120082796.txt | TXT | text/plain | 15,599 | Douglas K. Hinton, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. | May 8, 2008 | Appeal Number: 0120082796
Case Facts:
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts complainant's
appeal from the agency's May 8, 2008 final decision concerning his equal
employment opportunity (EEO) complaint alleging employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. § 2000e et seq.
During the relevant time, complainant was employed as a City Carrier at
the agency's North Shepherd Station in Houston, Texas.
On November 19, 2007, complainant filed the instant formal complaint.
Therein, complainant alleged that he was discriminated against on the
basis of race (Caucasian) when:
(1) beginning June 20, 2007 and continuing, he was subjected to a hostile
work environment in that he had been forced to carry overtime;
(2) his requests for union steward have been denied and delayed, and
his grievances have not been processed properly; and
(3) his request for official EEO time has been denied, delayed, and
diminished and his EEO representative has been threatened with discipline
for filling out the EEO form.
On December 7, 2007, the agency issued a partial dismissal. The agency
accepted claim (1) for investigation. The agency dismissed claim (2)
and a portion of claim (3) concerning complainant's EEO representative
being threatened with discipline for filling out the EEO form pursuant
to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. The agency
dismissed a portion of claim (3) concerning complainant's claim that his
request for official EEO time has been denied, delayed and diminished
pursuant to 29 C.F.R. § 1614.107(a)(8) on the grounds that complainant
claimed dissatisfaction with the processing of his EEO complaint.
At the conclusion of the investigation concerning claim (1), complainant
was provided with a copy of the report of the investigation and notice
of the right to request a hearing before an EEOC Administrative Judge or
a final decision within thirty days of receipt of the correspondence.
Complainant did not respond. On May 8, 2008, the agency issued the
instant final decision.
In its May 8, 2008 final decision, the agency found no discrimination
concerning claim (1). Specifically, the agency found that complainant
failed to establish a prima facie case of race-based harassment.
The agency found that complainant failed to prove that he was subjected
to harassment sufficiently severe or pervasive so as to render his work
environment hostile. Specifically, the agency determined that the
responsible management officials followed Article 8 of the agreement
between the union and agency in regard to the assignment of involuntary
overtime by assigning complainant to work overtime based on the needs
of the service.
On appeal, complainant submits a copy of his EEO representative's
memorandum dated June 5, 2008. Therein, the EEO Representative alleged
that complainant requested to see him as his representative "for at
least three weeks prior to 6-5-08. [Complainant] was allowed to met with
me today 6-5-08." Complainant also submits a copy of his two requests
dated May 22, 2008 and June 5, 2008 for EEO counseling concerning the
instant complaint, which requests were denied.
Claim (1)
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion
is unlawful, if it is sufficiently severe or pervasive. Wibstad
v. United States Postal Service, EEOC Appeal No. 01972699 (August 14,
1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). It is also well-settled that harassment based on an
individual's prior EEO activity is actionable. Roberts v. Department
of Transportation, EEOC Appeal No. 01970727 (September 15, 2000).
A single incident or group of isolated incidents will generally not
be regarded as discriminatory harassment unless the conduct is severe.
Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether
the harassment is sufficiently severe to trigger a violation of Title
VII must be determined by looking at all of the circumstances, including
the frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002
(March 8, 1994) at 3, 6. The harassers' conduct should be evaluated
from the objective viewpoint of a reasonable person in the victim's
circumstances. Enforcement Guidance on Harris v. Forklift Systems,
Inc., EEOC Notice No. 915.002 (March 8, 1994).
In the instant case, we find that the incidents complained of, even if
true, do not rise to the level of a hostile work environment.
After a review of the record in its entirety, including consideration
of all statements on appeal, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the agency's final decision concerning
claim (1) because the preponderance of the evidence of record does not
establish that discrimination occurred.
Claim (2) and portion of claim (3) (complainant's EEO representative
being threatened with discipline for filling out the EEO form)
In its December 7, 2007 partial dismissal, the agency dismissed claim (2)
and a portion of claim (3) concerning complainant's EEO representative
being threatened with discipline for filling out the EEO form pursuant to
29 C.F.R. § 1614.107(a)(1) for failure to state a claim. Regarding claim
(2), we find that the agency properly dismissed it for failure to state
a claim. The Commission has held that a complainant should not use the
EEO complaint process to lodge a collateral attack on another proceeding.
See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30,
1998); Kleinman v. United States Postal Service, EEOC Request No. 05940585
(September 22, 1994); Lingad v. United States Postal Service, EEOC Request
No. 05930106 (June 25, 1993). In the instant matter, we find that the
proper forum for complainant to raise claim (2) is in the grievance
process.
Regarding portion of claim (3) concerning complainant's EEO representative
being threatened with discipline for filling out an EEO form, we find
that the agency properly dismissed it for failure to state a claim
because complainant was not aggrieved. Specifically, we find that
complainant failed to demonstrate that he suffered harm to a term,
condition or privilege of his employment.
Accordingly, the agency's dismissal of claim (2) and a portion of claim
(3) concerning complainant's EEO representative being threatened with
discipline for filling out an EEO form for failure to state a claim is
AFFIRMED.
Portion of claim (3) (complainant's request for official EEO time has
been denied, delayed and diminished)
In its December 7, 2007 partial dismissal, the agency dismissed a portion
of claim (3) concerning complainant's claim that his request for official
EEO time has been denied, delayed and diminished pursuant to 29 C.F.R. §
1614.107(a)(8) on the grounds that complainant claimed dissatisfaction
with the processing of his EEO complaint.
Legal Analysis:
the Commission accepts complainant's
appeal from the agency's May 8, 2008 final decision concerning his equal
employment opportunity (EEO) complaint alleging employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. § 2000e et seq.
During the relevant time, complainant was employed as a City Carrier at
the agency's North Shepherd Station in Houston, Texas.
On November 19, 2007, complainant filed the instant formal complaint.
Therein, complainant alleged that he was discriminated against on the
basis of race (Caucasian) when:
(1) beginning June 20, 2007 and continuing, he was subjected to a hostile
work environment in that he had been forced to carry overtime;
(2) his requests for union steward have been denied and delayed, and
his grievances have not been processed properly; and
(3) his request for official EEO time has been denied, delayed, and
diminished and his EEO representative has been threatened with discipline
for filling out the EEO form.
On December 7, 2007, the agency issued a partial dismissal. The agency
accepted claim (1) for investigation. The agency dismissed claim (2)
and a portion of claim (3) concerning complainant's EEO representative
being threatened with discipline for filling out the EEO form pursuant
to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. The agency
dismissed a portion of claim (3) concerning complainant's claim that his
request for official EEO time has been denied, delayed and diminished
pursuant to 29 C.F.R. § 1614.107(a)(8) on the grounds that complainant
claimed dissatisfaction with the processing of his EEO complaint.
At the
Final Decision:
Accordingly, the agency's dismissal of claim (2) and a portion of claim (3) concerning complainant's EEO representative being threatened with discipline for filling out an EEO form for failure to state a claim is AFFIRMED. | Douglas K. Hinton,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082796
Agency No. 4G-770-0413-07
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts complainant's
appeal from the agency's May 8, 2008 final decision concerning his equal
employment opportunity (EEO) complaint alleging employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. § 2000e et seq.
During the relevant time, complainant was employed as a City Carrier at
the agency's North Shepherd Station in Houston, Texas.
On November 19, 2007, complainant filed the instant formal complaint.
Therein, complainant alleged that he was discriminated against on the
basis of race (Caucasian) when:
(1) beginning June 20, 2007 and continuing, he was subjected to a hostile
work environment in that he had been forced to carry overtime;
(2) his requests for union steward have been denied and delayed, and
his grievances have not been processed properly; and
(3) his request for official EEO time has been denied, delayed, and
diminished and his EEO representative has been threatened with discipline
for filling out the EEO form.
On December 7, 2007, the agency issued a partial dismissal. The agency
accepted claim (1) for investigation. The agency dismissed claim (2)
and a portion of claim (3) concerning complainant's EEO representative
being threatened with discipline for filling out the EEO form pursuant
to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. The agency
dismissed a portion of claim (3) concerning complainant's claim that his
request for official EEO time has been denied, delayed and diminished
pursuant to 29 C.F.R. § 1614.107(a)(8) on the grounds that complainant
claimed dissatisfaction with the processing of his EEO complaint.
At the conclusion of the investigation concerning claim (1), complainant
was provided with a copy of the report of the investigation and notice
of the right to request a hearing before an EEOC Administrative Judge or
a final decision within thirty days of receipt of the correspondence.
Complainant did not respond. On May 8, 2008, the agency issued the
instant final decision.
In its May 8, 2008 final decision, the agency found no discrimination
concerning claim (1). Specifically, the agency found that complainant
failed to establish a prima facie case of race-based harassment.
The agency found that complainant failed to prove that he was subjected
to harassment sufficiently severe or pervasive so as to render his work
environment hostile. Specifically, the agency determined that the
responsible management officials followed Article 8 of the agreement
between the union and agency in regard to the assignment of involuntary
overtime by assigning complainant to work overtime based on the needs
of the service.
On appeal, complainant submits a copy of his EEO representative's
memorandum dated June 5, 2008. Therein, the EEO Representative alleged
that complainant requested to see him as his representative "for at
least three weeks prior to 6-5-08. [Complainant] was allowed to met with
me today 6-5-08." Complainant also submits a copy of his two requests
dated May 22, 2008 and June 5, 2008 for EEO counseling concerning the
instant complaint, which requests were denied.
Claim (1)
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion
is unlawful, if it is sufficiently severe or pervasive. Wibstad
v. United States Postal Service, EEOC Appeal No. 01972699 (August 14,
1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). It is also well-settled that harassment based on an
individual's prior EEO activity is actionable. Roberts v. Department
of Transportation, EEOC Appeal No. 01970727 (September 15, 2000).
A single incident or group of isolated incidents will generally not
be regarded as discriminatory harassment unless the conduct is severe.
Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether
the harassment is sufficiently severe to trigger a violation of Title
VII must be determined by looking at all of the circumstances, including
the frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002
(March 8, 1994) at 3, 6. The harassers' conduct should be evaluated
from the objective viewpoint of a reasonable person in the victim's
circumstances. Enforcement Guidance on Harris v. Forklift Systems,
Inc., EEOC Notice No. 915.002 (March 8, 1994).
In the instant case, we find that the incidents complained of, even if
true, do not rise to the level of a hostile work environment.
After a review of the record in its entirety, including consideration
of all statements on appeal, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the agency's final decision concerning
claim (1) because the preponderance of the evidence of record does not
establish that discrimination occurred.
Claim (2) and portion of claim (3) (complainant's EEO representative
being threatened with discipline for filling out the EEO form)
In its December 7, 2007 partial dismissal, the agency dismissed claim (2)
and a portion of claim (3) concerning complainant's EEO representative
being threatened with discipline for filling out the EEO form pursuant to
29 C.F.R. § 1614.107(a)(1) for failure to state a claim. Regarding claim
(2), we find that the agency properly dismissed it for failure to state
a claim. The Commission has held that a complainant should not use the
EEO complaint process to lodge a collateral attack on another proceeding.
See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30,
1998); Kleinman v. United States Postal Service, EEOC Request No. 05940585
(September 22, 1994); Lingad v. United States Postal Service, EEOC Request
No. 05930106 (June 25, 1993). In the instant matter, we find that the
proper forum for complainant to raise claim (2) is in the grievance
process.
Regarding portion of claim (3) concerning complainant's EEO representative
being threatened with discipline for filling out an EEO form, we find
that the agency properly dismissed it for failure to state a claim
because complainant was not aggrieved. Specifically, we find that
complainant failed to demonstrate that he suffered harm to a term,
condition or privilege of his employment.
Accordingly, the agency's dismissal of claim (2) and a portion of claim
(3) concerning complainant's EEO representative being threatened with
discipline for filling out an EEO form for failure to state a claim is
AFFIRMED.
Portion of claim (3) (complainant's request for official EEO time has
been denied, delayed and diminished)
In its December 7, 2007 partial dismissal, the agency dismissed a portion
of claim (3) concerning complainant's claim that his request for official
EEO time has been denied, delayed and diminished pursuant to 29 C.F.R. §
1614.107(a)(8) on the grounds that complainant claimed dissatisfaction
with the processing of his EEO complaint.
EEOC Regulation 29 C.F.R. § 1614.605(b) provides that if the complainant
is an employee of the agency, he or she shall be given a reasonable amount
of official time, if otherwise on duty, to prepare a complaint and to
respond to agency and EEO requests for information. The Commission has
stated that an allegation pertaining to the denial of official time states
a separately-processable claim alleging a violation of the Commission's
regulations, without requiring a determination of whether the action
was motivated by discrimination. See Edwards v. United States Postal
Service, EEOC Request No. 05960179 (December 23, 1996). Essentially,
the Commission has held that it has the authority to remedy a violation
of 29 C.F.R. § 1614.605 without a finding of discrimination. Id.
The Commission held that such a claim should not be processed in
accordance with 29 C.F.R. § 1614.108, since the focus is not on the
motivation but rather the justification of why the complainant was denied
a reasonable amount of official time. Id.
In the instant matter, there is insufficient information in the record
as to whether complainant was denied official time, and for what reason.
Accordingly, the agency's decision in this regard was improper, and
is hereby VACATED. Portion of claim (3) is REMANDED to the agency for
further processing in accordance with this decision and the ORDER below.
ORDER
The agency is ORDERED to take the following actions:
1. The agency shall investigate the issue of whether complainant was
denied a reasonable amount of EEO official time. The agency shall include
in the record documentation reflecting how much time was requested,
for what stated purposes, how much time was granted, if any, and the
justification for the denial of the requested time.
2. The agency shall notify complainant of the opportunity to place into
the record any evidence supporting the claim that he was denied official
time.
3. Within thirty (30) calendar days of the date that this decision becomes
final, the agency shall issue a decision as to whether complainant was
denied a reasonable amount of official time. The agency's decision shall
provide appeal rights to the Commission.
A copy of the decision must be submitted to the Compliance Officer,
as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 (M0408)
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 (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (Z0408)
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 26, 2008
Date
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036 | [
"Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998)",
"Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997)",
"Roberts v. Department of Transportation, EEOC Appeal No. 01970727 (September 15, 2000)",
"Wills v. Department of Defense, EEOC Request No. 0... | [
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282 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120071244.txt | 0120071244.txt | TXT | text/plain | 13,662 | Timothy D. Center, Complainant, v. Hector V. Barreto, Administrator, Small Business Administration, Agency. | November 7, 2006 | Appeal Number: 0120071244
Case Facts:
Complainant filed a timely appeal with this Commission from the final
agency decision dated November 7, 2006, dismissing his formal complaint
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e
et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
During the relevant time, complainant was employed as a temporary Loan
Specialist, GS-9, at the agency's Office of Disaster Assistance, Loan
Processing & Distribution Center in Fort Worth, Texas.1
On July 27, 2006, complainant initiated EEO contact. Informal efforts
to resolve his concerns were unsuccessful.
On October 3, 2006, complainant filed the instant formal complaint.
Therein, complainant claimed that he was subjected to harassment and
a hostile work environment on the bases of race, sex, disability, age,
and in reprisal for prior EEO activity.
In its November 7, 2006 final decision, the agency issued the instant
final decision. Therein, the agency determined that complainant's
complaint was comprised of the following five claims:
(1) on April 3, 2006, a Senior Loan Officer (SLO) openly reprimanded
complainant with demeaning and condescending remarks for not taking phone
messages for the daytime loan officer with whom he shared a work station;
(2) on April 7, 2006, during a conversation with the Chief Loan Processing
(Chief) complainant asked to speak to an EEO Counselor on four separate
occasions and was advised by the Chief that it would do no good to file
a complaint against SLO because she "is so well liked." Complainant then
asked for a transfer to another building and was told that "the length of
[his] tenure at the SBA was now from day to day and the transfer would
only hurt [him];"
(3) on April 12, 2006, SLO walked past complainant in the hallway and
muttered "that did you a lot of good, cracker." Complainant claimed
that SLO was referring to his meeting with the Chief following which she
"would glare, stare, and make it a point to try to intimidate [him];"
(4) on April 17, 2006, while complainant was on the telephone speaking
to an applicant about his criminal background, as required, SLO began
passing out time sheets for the previous pay period. Complainant stated
that "[s]he laid everyone's time sheets that [he] could see down next
to them or in their seats if they were not at their station [sic]."
However, when she got to him, she saw that he was engaged in a telephone
conversation, and he was holding the phone with one hand while typing the
information the caller supplied with the other. Nevertheless, SLO stood
next to complainant holding the paper in front of his face so he could not
see his computer monitor or continue entering the data. She interrupted
him from his work and forced him to take the paper out of her hand; and
(5) at that time, one of complainant's co-workers advised him that SLO
had become his supervisor. After attempting to speak to SLO, a Loan
Officer and others, as well as leaving several telephone messages,
complainant placed his name tag on his station and left under duress
claiming that he was constructively discharged.
The agency dismissed the instant complaint pursuant to 29
C.F.R. 1614.107(a)(2) on the grounds of untimely EEO Counselor contact.
The agency determined that each incident occurred beyond the 45-day
time limit. The agency found that complainant had constructive notice of
the time limit because according to the EEO Counselor, EEO posters that
contained the pertinent information were displayed on the wall outside
of the break rooms, next to the restroom; and have been in that location
since August 2003. Further, the agency found that each of the alleged
incidents of discrimination should have given rise to a suspicion of
discrimination at the time they occurred, and that complainant failed
to exercise due diligence in contacting an EEO Counselor.
On appeal, complainant argued that his EEO contact was timely because he
was not aware of the 45-day limitation period. In response, the agency
argued that complainant had constructive notice of the 45-day limitation
period. Specifically, the agency argued that complainant signed a form
acknowledging that he received notice of the 45-day limitation period.
The agency argued that EEO posters outlining the requisite time period to
contact an EEO Counselor were prominently on display during the relevant
time. The agency argued that according to a Human Resources Specialist,
complainant received his orientation concerning the EEO process "in the
very room at the Kingsport One Building where one of the EEO posters
was located." In support of its contention, the agency submitted the
above referenced documentation.
Complainant, through his attorney, submitted a supplementary submission in
response to the agency's opposition to his appeal. Therein, complainant
contends it has been brought to his attention that during orientation
on December 19, 2005, a video and discussion "of sexual harassment,
possibly including some other content about EEO matters, may have been
presented during my absence due to being escorted to the [Human Resources
Manager]." Complainant further contends that during the time, he was
"detained for at least an hour and accused of falsifying my application."
Complainant contends that he was later escorted back to orientation but
"never saw the video or heard anything about EEO procedures."
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints
of discrimination should be brought to the attention of the Equal
Employment Opportunity Counselor within forty-five (45) days of the
date of the matter alleged to be discriminatory or, in the case of a
personnel action, within forty-five (45) days of the effective date of
the action. The Commission's regulations, however, provide that the
time limit will be extended when the complainant shows that he or she
was not notified of the time limits and was not otherwise aware of them,
that he or she did not know and reasonably should not have known that
the discriminatory matter or personnel action occurred, that despite
due diligence he or she was prevented by circumstances beyond his
control from contacting the Counselor within the time limits, or for
other reasons considered sufficient by the agency or the Commission.
See 29 C.F.R. § 1614.105(a)(2).
The agency properly dismissed complainant's complaint for untimely EEO
Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). There is
sufficient evidence in the record showing complainant had actual or
constructive notice of the time limit for contacting an EEO Counselor.
We find that the July 27, 2006 EEO contact occurred beyond the forty-five
(45) day time limit. Moreover, the record contains a declaration dated
February 2, 2007 from the Human Resource Specialist (HR Specialist).
Therein, the HR Specialist confirmed the existence of EEO posters within
the agency that contained all important and relevant information on the
45-day limitation; and that such posters were visible to all employees
during the course of their workday. The HR Specialist stated that the
EEO posters were posted in the common area near the break room "of the
14925 Kingsport Road (Kingsport I) building. I also determined that the
poster was displayed in the 14951 Kingsport Road building (Kingsport II)
in the common area near the break room and also displayed near the main
entrance of the 4200 Buckingham building. The HR Specialist further
stated that the EEO posters were on display "for the entire time that
[Complainant] was employed as a temporary employee with the SBA -
the period of time covering December 19, 2005, through the date he
abandoned the job on April 17, 2006." The HR Specialist stated that
complainant had constructive notice of the EEO poster because it was
displayed in the common areas. Specifically, the HR Specialist stated
that complainant received his orientation in the Kingsport I break room,
and worked in the Buckingham building.
The record also contains a declaration dated February 1, 2007 from the
Chief. Therein, the Chief denied complainant's claim that he attempted to
discourage him from contacting an EEO Counselor. The Chief further stated
during the April 7, 2006 meeting, complainant "never made any allegation
that he was being discriminated against because of his race and never once
indicated that he wished to file an EEO complaint." The Chief stated
"I would not and did not attempt in any way to discourage or dissuade
[Complainant] from contacting an EEO Counselor. In my meeting with him,
the subject of discrimination simply did not come up."
The record contains a document titled "Facts About Federal Sector Equal
Employment Opportunity Complaint Processing Regulations (29 CFR Part
1614)" concerning employees who believe they have been discriminated
against to contact an EEO Counselor within 45 days of the alleged
discriminatory action. Therein, complainant signed and dated the document
December 15, 2005, acknowledging receipt of the document.
Final Decision:
Accordingly, the agency's final decision dismissing complainant's complaint on the grounds of untimely EEO Counselor contact is AFFIRMED. | Timothy D. Center,
Complainant,
v.
Hector V. Barreto,
Administrator,
Small Business Administration,
Agency.
Appeal No. 0120071244
Agency No. 10-07-001
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated November 7, 2006, dismissing his formal complaint
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e
et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
During the relevant time, complainant was employed as a temporary Loan
Specialist, GS-9, at the agency's Office of Disaster Assistance, Loan
Processing & Distribution Center in Fort Worth, Texas.1
On July 27, 2006, complainant initiated EEO contact. Informal efforts
to resolve his concerns were unsuccessful.
On October 3, 2006, complainant filed the instant formal complaint.
Therein, complainant claimed that he was subjected to harassment and
a hostile work environment on the bases of race, sex, disability, age,
and in reprisal for prior EEO activity.
In its November 7, 2006 final decision, the agency issued the instant
final decision. Therein, the agency determined that complainant's
complaint was comprised of the following five claims:
(1) on April 3, 2006, a Senior Loan Officer (SLO) openly reprimanded
complainant with demeaning and condescending remarks for not taking phone
messages for the daytime loan officer with whom he shared a work station;
(2) on April 7, 2006, during a conversation with the Chief Loan Processing
(Chief) complainant asked to speak to an EEO Counselor on four separate
occasions and was advised by the Chief that it would do no good to file
a complaint against SLO because she "is so well liked." Complainant then
asked for a transfer to another building and was told that "the length of
[his] tenure at the SBA was now from day to day and the transfer would
only hurt [him];"
(3) on April 12, 2006, SLO walked past complainant in the hallway and
muttered "that did you a lot of good, cracker." Complainant claimed
that SLO was referring to his meeting with the Chief following which she
"would glare, stare, and make it a point to try to intimidate [him];"
(4) on April 17, 2006, while complainant was on the telephone speaking
to an applicant about his criminal background, as required, SLO began
passing out time sheets for the previous pay period. Complainant stated
that "[s]he laid everyone's time sheets that [he] could see down next
to them or in their seats if they were not at their station [sic]."
However, when she got to him, she saw that he was engaged in a telephone
conversation, and he was holding the phone with one hand while typing the
information the caller supplied with the other. Nevertheless, SLO stood
next to complainant holding the paper in front of his face so he could not
see his computer monitor or continue entering the data. She interrupted
him from his work and forced him to take the paper out of her hand; and
(5) at that time, one of complainant's co-workers advised him that SLO
had become his supervisor. After attempting to speak to SLO, a Loan
Officer and others, as well as leaving several telephone messages,
complainant placed his name tag on his station and left under duress
claiming that he was constructively discharged.
The agency dismissed the instant complaint pursuant to 29
C.F.R. 1614.107(a)(2) on the grounds of untimely EEO Counselor contact.
The agency determined that each incident occurred beyond the 45-day
time limit. The agency found that complainant had constructive notice of
the time limit because according to the EEO Counselor, EEO posters that
contained the pertinent information were displayed on the wall outside
of the break rooms, next to the restroom; and have been in that location
since August 2003. Further, the agency found that each of the alleged
incidents of discrimination should have given rise to a suspicion of
discrimination at the time they occurred, and that complainant failed
to exercise due diligence in contacting an EEO Counselor.
On appeal, complainant argued that his EEO contact was timely because he
was not aware of the 45-day limitation period. In response, the agency
argued that complainant had constructive notice of the 45-day limitation
period. Specifically, the agency argued that complainant signed a form
acknowledging that he received notice of the 45-day limitation period.
The agency argued that EEO posters outlining the requisite time period to
contact an EEO Counselor were prominently on display during the relevant
time. The agency argued that according to a Human Resources Specialist,
complainant received his orientation concerning the EEO process "in the
very room at the Kingsport One Building where one of the EEO posters
was located." In support of its contention, the agency submitted the
above referenced documentation.
Complainant, through his attorney, submitted a supplementary submission in
response to the agency's opposition to his appeal. Therein, complainant
contends it has been brought to his attention that during orientation
on December 19, 2005, a video and discussion "of sexual harassment,
possibly including some other content about EEO matters, may have been
presented during my absence due to being escorted to the [Human Resources
Manager]." Complainant further contends that during the time, he was
"detained for at least an hour and accused of falsifying my application."
Complainant contends that he was later escorted back to orientation but
"never saw the video or heard anything about EEO procedures."
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints
of discrimination should be brought to the attention of the Equal
Employment Opportunity Counselor within forty-five (45) days of the
date of the matter alleged to be discriminatory or, in the case of a
personnel action, within forty-five (45) days of the effective date of
the action. The Commission's regulations, however, provide that the
time limit will be extended when the complainant shows that he or she
was not notified of the time limits and was not otherwise aware of them,
that he or she did not know and reasonably should not have known that
the discriminatory matter or personnel action occurred, that despite
due diligence he or she was prevented by circumstances beyond his
control from contacting the Counselor within the time limits, or for
other reasons considered sufficient by the agency or the Commission.
See 29 C.F.R. § 1614.105(a)(2).
The agency properly dismissed complainant's complaint for untimely EEO
Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). There is
sufficient evidence in the record showing complainant had actual or
constructive notice of the time limit for contacting an EEO Counselor.
We find that the July 27, 2006 EEO contact occurred beyond the forty-five
(45) day time limit. Moreover, the record contains a declaration dated
February 2, 2007 from the Human Resource Specialist (HR Specialist).
Therein, the HR Specialist confirmed the existence of EEO posters within
the agency that contained all important and relevant information on the
45-day limitation; and that such posters were visible to all employees
during the course of their workday. The HR Specialist stated that the
EEO posters were posted in the common area near the break room "of the
14925 Kingsport Road (Kingsport I) building. I also determined that the
poster was displayed in the 14951 Kingsport Road building (Kingsport II)
in the common area near the break room and also displayed near the main
entrance of the 4200 Buckingham building. The HR Specialist further
stated that the EEO posters were on display "for the entire time that
[Complainant] was employed as a temporary employee with the SBA -
the period of time covering December 19, 2005, through the date he
abandoned the job on April 17, 2006." The HR Specialist stated that
complainant had constructive notice of the EEO poster because it was
displayed in the common areas. Specifically, the HR Specialist stated
that complainant received his orientation in the Kingsport I break room,
and worked in the Buckingham building.
The record also contains a declaration dated February 1, 2007 from the
Chief. Therein, the Chief denied complainant's claim that he attempted to
discourage him from contacting an EEO Counselor. The Chief further stated
during the April 7, 2006 meeting, complainant "never made any allegation
that he was being discriminated against because of his race and never once
indicated that he wished to file an EEO complaint." The Chief stated
"I would not and did not attempt in any way to discourage or dissuade
[Complainant] from contacting an EEO Counselor. In my meeting with him,
the subject of discrimination simply did not come up."
The record contains a document titled "Facts About Federal Sector Equal
Employment Opportunity Complaint Processing Regulations (29 CFR Part
1614)" concerning employees who believe they have been discriminated
against to contact an EEO Counselor within 45 days of the alleged
discriminatory action. Therein, complainant signed and dated the document
December 15, 2005, acknowledging receipt of the document.
Accordingly, the agency's final decision dismissing complainant's
complaint on the grounds of untimely EEO Counselor contact is AFFIRMED.
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
March 22, 2007
__________________
Date
1 The record reflects that on April 17, 2006, complainant quit working
for the agency.
??
??
??
??
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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283 | https://www.eeoc.gov/sites/default/files/decisions/2023_02_03/2022005101.pdf | 2022005101.pdf | PDF | application/pdf | 15,464 | Emerita G .,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. | September 22, 2022 | Appeal Number: 2022005101
Background:
At the time of events giving rise to this complaint, Complainant worked as a Utilityman, WG -
9985-10, at the Agency’s Civil Service Mariners (CIVMARS) West facility in Norfolk, Virginia. In late September 2020, her coworker, who worked as a Marine Placement Assistant, began making sexual charged comments towards her and repeatedly asked her to send nude photographs.
See Report of Investigation (ROI) at 000033 -34, 36, 41, 43, 115, and 117. As Complainant was
afraid of reprisal, she reached out to the EEOC directly to report the harassment . Id. at 000107.
The EEOC subsequently referred Complainant to the Agency’s EEO Office, and Complainant
initiated EEO counseling on January 29, 2021. Id. at 000108. Following Complainant’s complaint
of sexual harassment, the Agency’s EEO Office i nformed Complainant’s third- level supervisor,
who then initiated a management inquiry into the allegations. Id. at 000091. The management
inquiry concluded on March 8, 2021, and substantiated Complainant’s allegations. Id. at 000183.
To remedy, the harassment, management ordered the Marine Placement Assistant to not contact
Complainant anymore. Id. at 000093
On May 17, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on sex (female) when between September 24, 2020, and September 25, 2020,
the Marine Placement Assistant contacted Complainant by email and voicemail and requested nude pictures, among other comments.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC AJ.
Complainant requested a hearing. In accordance with Complainant’s request, the Commission assigned an AJ to hear the matter .
On February 23, 2022, t he Agency filed a motion, seeking to dismiss the complaint based on
Complainant’s failure to timely initiate EEO counseling in accordance with 29 C.F.R § 1614.105(a)(1). In so arguing, the Agency maintained that the undisputed rec ord showed that the
alleged incidents of discrimination occurred in late September 2020; however, Complainant waited until January 29, 2021, to initiate EEO counseling. As more than 45 days had elapsed between the date of the alleged discriminatory inciden ts and the date of Complainant’s initial EEO contact, the
Agency argued that dismissal was warranted.
Complainant, however, vehemently opposed the Agency’s motion on the grounds that the Agency had misapplied the 45- day time frame to initiate EEO counseling. Through her attorney,
Complainant argued that she could not legally initiate EEO counseling within the 45- day
timeframe because the Marine Placement Assistant was not her supervisor and 29 C.F.R.
§ 1604.11(d) establishes that “in a case of co -worker harassment, liability does not attach to the
Agency unless and until the Agency failed to take prompt, effective remedial action to correct that harassment upon learning of the harassment.” C omplainant emphasized that “had [she] jumped
straight into filing an EEO complaint within 45 days of being the victim of sexual harassment, her EEO complaint would have been at risk of being dismissed as prematurely filed due to the Agency not yet having a n opportunity to take prompt, effective remedial action.” Furthermore,
Complainant maintained that she was afraid to report the harassment and stressed that “[t]he
Agency has presented no evidence of prejudice or harm in its ability to investigate and take action
in response to Complainant reporting the harassment in January 2021 instead of November 9, 2020 (the 45
th day from September 25, 2020).” As such, Complainant maintained that dismissal was
inappropriate.
2 At the parties’ request, the AJ reframed the complaint in this manner. See Jointly Reframe d Issue ,
dated February 11, 2022.
In response to Complainant’s opposition, the Agency filed a reply, arguing that Complainant’s
reliance on 29 C.F.R. § 1604.11(d) to excuse her untimely EEO counseling was misplaced because that regulation “merely sets forth what an aggrieved individual must show in order to establish a claim of disc riminatory harassment” and “does not provide the procedural basis or mechanism that
an aggrieved individual must follow in order to assert such a claim.” The Agency explained that “[t]he procedure to do so, including the applicable time deadlines is set forth in 29 C.F.R. § 1614.101- 1614- 110.” As “[n]othing in 29 C.F.R Part 1614 allows a Complainant to shift the 45-
day period to when the Complainant learns of the corrective actions an Agency has taken,” the
Agency again reiterated that dismissal was the app ropriate course of action.
Over Complainant’s opposition, the assigned AJ granted the Agency’s motion and dismissed the
matter for untimely EEO contact, as the undisputed record showed “the initial incident occurred on or about September 24, 2020, but [Complainant] did not report the incident to any official until January 29, 2021.” In reaching this conclusion, the AJ carefully considered Complainant’s
contention that her untimely EEO contact was due to her fear of reprisal ; however, the AJ
ultimately reje cted that contention, as the Commission has long held that a generalized fear of
reprisal is insufficient to waive the limitations period. The Agency subsequently issued a final order implementing the AJ’s decision. This appeal
followed.
CONTENTIONS ON APPEAL
On appeal, Com plainant argues that the AJ erred in finding her complaint to be untimely raised as
she did in fact “timely initiate her EEO contact within 45 calendar days of being informed of the Agency’s decided -upon remedial action.” She reiterates that since “this is a case of sexual
harassment by a coworker, it would have been premature for Complainant to initiate an EEO complaint against the Agency without first putting the Agency on notice and allowing the Agency the opportunity to take prompt effective remedial ac tion.” Finally, Complainant emphasizes that
“even if Complainant had never reported the sexual harassment to the Agency, if the Agency learned of the harassment by other means and failed to take prompt and effective corrective action, the Complainant still would have an actionable EEO complaint.”
The Agency, however, opposes the appeal. In opposing the appeal , the Agency vehemently
disputes Complainant’s contention that the 45- day deadline is triggered of being informed the
Agency’s chosen remedial action and maintains that the Commission applies a “reasonable suspicion” standard “when determining the triggering date for the 45 -day clock.” As Complainant
failed to timely initiate EEO contact or offer a valid excuse, the Agency requests that we affirm its final order.
Legal Analysis:
the Commission assigned an AJ to hear the matter .
On February 23, 2022, t he Agency filed a motion, seeking to dismiss the complaint based on
Complainant’s failure to timely initiate EEO counseling in accordance with 29 C.F.R § 1614.105(a)(1). In so arguing, the Agency maintained that the undisputed rec ord showed that the
alleged incidents of discrimination occurred in late September 2020; however, Complainant waited until January 29, 2021, to initiate EEO counseling. As more than 45 days had elapsed between the date of the alleged discriminatory inciden ts and the date of Complainant’s initial EEO contact, the
Agency argued that dismissal was warranted.
Complainant, however, vehemently opposed the Agency’s motion on the grounds that the Agency had misapplied the 45- day time frame to initiate EEO counseling. Through her attorney,
Complainant argued that she could not legally initiate EEO counseling within the 45- day
timeframe because the Marine Placement Assistant was not her supervisor and 29 C.F.R.
§ 1604.11(d) establishes that “in a case of co -worker harassment, liability does not attach to the
Agency unless and until the Agency failed to take prompt, effective remedial action to correct that harassment upon learning of the harassment.” C omplainant emphasized that “had [she] jumped
straight into filing an EEO complaint within 45 days of being the victim of sexual harassment, her EEO complaint would have been at risk of being dismissed as prematurely filed due to the Agency not yet having a n opportunity to take prompt, effective remedial action.” Furthermore,
Complainant maintained that she was afraid to report the harassment and stressed that “[t]he
Agency has presented no evidence of prejudice or harm in its ability to investigate and take action
in response to Complainant reporting the harassment in January 2021 instead of November 9, 2020 (the 45
th day from September 25, 2020).” As such, Complainant maintained that dismissal was
inappropriate.
2 At the parties’ request, the AJ reframed the complaint in this manner. See Jointly Reframe d Issue ,
dated February 11, 2022.
In response to Complainant’s opposition, the Agency filed a reply, arguing that Complainant’s
reliance on 29 C.F.R. § 1604.11(d) to excuse her untimely EEO counseling was misplaced because that regulation “merely sets forth what an aggrieved individual must show in order to establish a claim of disc riminatory harassment” and “does not provide the procedural basis or mechanism that
an aggrieved individual must follow in order to assert such a claim.” The Agency explained that “[t]he procedure to do so, including the applicable time deadlines is set forth in 29 C.F.R. § 1614.101- 1614- 110.” As “[n]othing in 29 C.F.R Part 1614 allows a Complainant to shift the 45-
day period to when the Complainant learns of the corrective actions an Agency has taken,” the
Agency again reiterated that dismissal was the app ropriate course of action.
Over Complainant’s opposition, the assigned AJ granted the Agency’s motion and dismissed the
matter for untimely EEO contact, as the undisputed record showed “the initial incident occurred on or about September 24, 2020, but [Complainant] did not report the incident to any official until January 29, 2021.” In reaching this | Emerita G .,1
Complainant,
v.
Carlos Del Toro,
Secretary,
Department of the Navy,
Agency.
Appeal No. 2022005101
Hearing No. 430-2022-00067X
Agency No. 21-62383-00528
DECISION
On September 22, 2022, Complainant filed a n appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from the Agency’ s final order dated September 20, 2022,
dismissing her complaint of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, we find that the Agency prope rly implemented the EEOC Administrative Judge (AJ)’s
decision to dismiss the complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. Consequently, we AFFIRM the Agency’s final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Utilityman, WG -
9985-10, at the Agency’s Civil Service Mariners (CIVMARS) West facility in Norfolk, Virginia. In late September 2020, her coworker, who worked as a Marine Placement Assistant, began making sexual charged comments towards her and repeatedly asked her to send nude photographs.
See Report of Investigation (ROI) at 000033 -34, 36, 41, 43, 115, and 117. As Complainant was
afraid of reprisal, she reached out to the EEOC directly to report the harassment . Id. at 000107.
The EEOC subsequently referred Complainant to the Agency’s EEO Office, and Complainant
initiated EEO counseling on January 29, 2021. Id. at 000108. Following Complainant’s complaint
of sexual harassment, the Agency’s EEO Office i nformed Complainant’s third- level supervisor,
who then initiated a management inquiry into the allegations. Id. at 000091. The management
inquiry concluded on March 8, 2021, and substantiated Complainant’s allegations. Id. at 000183.
To remedy, the harassment, management ordered the Marine Placement Assistant to not contact
Complainant anymore. Id. at 000093
On May 17, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on sex (female) when between September 24, 2020, and September 25, 2020,
the Marine Placement Assistant contacted Complainant by email and voicemail and requested nude pictures, among other comments.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC AJ.
Complainant requested a hearing. In accordance with Complainant’s request, the Commission assigned an AJ to hear the matter .
On February 23, 2022, t he Agency filed a motion, seeking to dismiss the complaint based on
Complainant’s failure to timely initiate EEO counseling in accordance with 29 C.F.R § 1614.105(a)(1). In so arguing, the Agency maintained that the undisputed rec ord showed that the
alleged incidents of discrimination occurred in late September 2020; however, Complainant waited until January 29, 2021, to initiate EEO counseling. As more than 45 days had elapsed between the date of the alleged discriminatory inciden ts and the date of Complainant’s initial EEO contact, the
Agency argued that dismissal was warranted.
Complainant, however, vehemently opposed the Agency’s motion on the grounds that the Agency had misapplied the 45- day time frame to initiate EEO counseling. Through her attorney,
Complainant argued that she could not legally initiate EEO counseling within the 45- day
timeframe because the Marine Placement Assistant was not her supervisor and 29 C.F.R.
§ 1604.11(d) establishes that “in a case of co -worker harassment, liability does not attach to the
Agency unless and until the Agency failed to take prompt, effective remedial action to correct that harassment upon learning of the harassment.” C omplainant emphasized that “had [she] jumped
straight into filing an EEO complaint within 45 days of being the victim of sexual harassment, her EEO complaint would have been at risk of being dismissed as prematurely filed due to the Agency not yet having a n opportunity to take prompt, effective remedial action.” Furthermore,
Complainant maintained that she was afraid to report the harassment and stressed that “[t]he
Agency has presented no evidence of prejudice or harm in its ability to investigate and take action
in response to Complainant reporting the harassment in January 2021 instead of November 9, 2020 (the 45
th day from September 25, 2020).” As such, Complainant maintained that dismissal was
inappropriate.
2 At the parties’ request, the AJ reframed the complaint in this manner. See Jointly Reframe d Issue ,
dated February 11, 2022.
In response to Complainant’s opposition, the Agency filed a reply, arguing that Complainant’s
reliance on 29 C.F.R. § 1604.11(d) to excuse her untimely EEO counseling was misplaced because that regulation “merely sets forth what an aggrieved individual must show in order to establish a claim of disc riminatory harassment” and “does not provide the procedural basis or mechanism that
an aggrieved individual must follow in order to assert such a claim.” The Agency explained that “[t]he procedure to do so, including the applicable time deadlines is set forth in 29 C.F.R. § 1614.101- 1614- 110.” As “[n]othing in 29 C.F.R Part 1614 allows a Complainant to shift the 45-
day period to when the Complainant learns of the corrective actions an Agency has taken,” the
Agency again reiterated that dismissal was the app ropriate course of action.
Over Complainant’s opposition, the assigned AJ granted the Agency’s motion and dismissed the
matter for untimely EEO contact, as the undisputed record showed “the initial incident occurred on or about September 24, 2020, but [Complainant] did not report the incident to any official until January 29, 2021.” In reaching this conclusion, the AJ carefully considered Complainant’s
contention that her untimely EEO contact was due to her fear of reprisal ; however, the AJ
ultimately reje cted that contention, as the Commission has long held that a generalized fear of
reprisal is insufficient to waive the limitations period. The Agency subsequently issued a final order implementing the AJ’s decision. This appeal
followed.
CONTENTIONS ON APPEAL
On appeal, Com plainant argues that the AJ erred in finding her complaint to be untimely raised as
she did in fact “timely initiate her EEO contact within 45 calendar days of being informed of the Agency’s decided -upon remedial action.” She reiterates that since “this is a case of sexual
harassment by a coworker, it would have been premature for Complainant to initiate an EEO complaint against the Agency without first putting the Agency on notice and allowing the Agency the opportunity to take prompt effective remedial ac tion.” Finally, Complainant emphasizes that
“even if Complainant had never reported the sexual harassment to the Agency, if the Agency learned of the harassment by other means and failed to take prompt and effective corrective action, the Complainant still would have an actionable EEO complaint.”
The Agency, however, opposes the appeal. In opposing the appeal , the Agency vehemently
disputes Complainant’s contention that the 45- day deadline is triggered of being informed the
Agency’s chosen remedial action and maintains that the Commission applies a “reasonable suspicion” standard “when determining the triggering date for the 45 -day clock.” As Complainant
failed to timely initiate EEO contact or offer a valid excuse, the Agency requests that we affirm its final order.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the Agency shall dismiss a complaint or
a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105,
§1614.106 and §1614.204(c ), unless the Agency extends the time limits in accordance with
§1614.604(c).
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) provides that an aggrieved person must initiate
contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC r egulation 29 C.F.R. § 1614.105(a)(2) allows the Agency or the Commission to
extend the time limit if Complainant can establish that Complainant w as not aware of the time
limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission.
Upon review , we find that the AJ properly dismissed the complaint for untimely EEO contact , as
our review of the record clearly shows that Complainant did not initiate EEO contact on her
September 2020 allegations of harassment until January 29, 2021. While we are mindful of
Complainant’s contentions on appeal, we ultimately find no merit to her assertion that the 45- day
deadline starts only when the Agency renders a decision on whether to take remedial action and to
what extent. To the contrary, we note that our regulation at 29 C.F.R. § 1614.105(a)(1)
clearly requires an aggrieved individual to initiate EEO contact within 45 days of the
discriminatory act unless one of the exceptions noted in 29 C.F.R. § 1614.105(a)(2) applies. While
we are sympathetic to Complainant’s fears of reprisal, we note that the Commis sion has long found
generalized fears of reprisal to be insufficient to extend the 45- day deadline. See Breannie H. v.
Dep’t of Homeland Sec. , EEOC Appeal No. 2020004873 (Dec. 21, 2021).
We also reject Complainant’s attempt to extend the time limit for initiating EEO contact until 45
days after the completion of Agency’s internal process for addressing harassment, as the
Commission has held that an agency’s internal process is separate and distinct from the EEO process. See Rosamaria F. v. Dep’t of the Navy , EEOC Appeal No. 0120181068 (Feb. 14, 2020).
As Complainant has not offered any persuasive explanation as to why the 45- day deadline should
be extended, we ultimately find the matter to be untimely raised .
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final order .
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0920)
The Commission may, in its discretion, reconsider this appellate decision if Complainant or the
Agency submits a written request that contains arguments or evidence that tend to establish that:
1. The appellate decision involved a clearly erroneous inter pretation 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thir ty (30) calendar days of receipt of this decision. If the party requesting reconsideration
elects to file a statement or brief in support of the request, that statement or brief must be filed
together with the request for reconsideration . A party shall have twenty (20) calendar days
from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management
Directive for 29 C.F.R . Part 1614 (EEO MD -110), at Chap. 9 § VII.B (Aug. 5, 2015).
Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx
Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to
P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F. R. § 1614.403(g). Either party’s request and/or
statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required.
Failure to file within the 30 -day time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted tog ether with the 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
Carlton M. Hadden’s signature
Carlton M. Hadden, Director Office of Federal Operations
December 13, 2022
Date | [
"Breannie H. v. Dep’t of Homeland Sec. , EEOC Appeal No. 2020004873 (Dec. 21, 2021)",
"Rosamaria F. v. Dep’t of the Navy , EEOC Appeal No. 0120181068 (Feb. 14, 2020)",
"29 C.F.R. § 1614.107(a)",
"29 C.F.R. § 1604.11(d)",
"29 C.F.R. § 1614.101",
"29 C.F.R. § 1614.105(a)",
"29 C.F.R. § 1614.405",
"29 C.... | [
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284 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01985502.txt | 01985502.txt | TXT | text/plain | 15,205 | February 11, 2000 | Appeal Number: 01985502
Complaint Allegations:
In his complaint, complainant alleged that he was subjected to discrimination on the bases of race (Afro-American), sex (male), color (black), age (47), and in retaliation for prior EEO activity when: On May 30, 1997, complainant was not recommended for the position of Systems Analyst, EAS-19.
Case Facts:
On July 7, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on June 18, 1998,
pertaining to 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. and 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
bases of race (Afro-American), sex (male), color (black), age (47),
and in retaliation for prior EEO activity when:
On May 30, 1997, complainant was not recommended for the position of
Systems Analyst, EAS-19.
The agency dismissed complainant's complaint on the grounds of untimely
EEO Counselor contact. In its final decision, the agency noted that
complainant pursued the agency's May 30, 1997 decision through a
Merit System Protection Board (MSPB) appeal. The agency claimed that
complainant was notified from MSPB that his appeal was dismissed due to
lack of jurisdiction on November 3, 1997, and that the decision became
final on December 8, 1997. The agency claimed that since complainant did
not contact the Tennessee EEO Office until March 4, 1998, his contact
was beyond the forty-five day limitation period and, therefore, his
complaint was untimely.
On appeal, complainant claims that he did meet the forty-five day contact
requirement and that therefore his complaint should not be dismissed.
Complainant concedes that his MSPB appeal was dismissed due to lack of
jurisdiction on November 3, 1997, and that the decision became final on
December 8, 1997. However, complainant states that the MSPB decision
did not inform him that he had forty-five days to seek EEO Counseling.
Complainant states that on December 24, 1997, he received a letter from
the EEO Compliance and Appeals Coordinator, Southeast/Southwest Area
Office, stating that he should contact the agency's headquarters office
in order to initiate EEO counseling which complainant claims he did
by sending a certified letter on January 24, 1997, to the headquarters
EEO office. Complainant then states that he received an acknowledgment
letter from the headquarters EEO office which stated that complainant's
request for counseling would be processed by the Southeast/Southwest
Area Office. When complainant did not hear from the Southeast/Southwest
Office, he went to see a counselor in person on March 4, 1998.
The record shows that complainant filed an MSPB appeal regarding the
agency's decision not to promote him on July 3, 1997. According to the
record, the MSPB issued a decision on November 3, 1997, which dismissed
the appeal based on jurisdictional grounds. The record also contains a
December 24, 1997 letter to complainant from the agency's headquarters
EEO Office which informed complainant of his right to contact an EEO
Counselor within forty-five days of receipt of the notice from the
Board. In addition, the record contains a January 27, 1998 letter from
complainant to the agency's headquarters EEO Office in which complainant
requested EEO Counseling. Also included in the record is a February
6, 1998 letter from the headquarters EEO Office to complainant which
informed complainant that his complaint would be forwarded to the
Southeast/Southwest EEO Office and would be processed there.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, 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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
According to 64 Fed. Reg. 37,644 37,659 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. § 1614.302(b)), if a person files
a mixed case appeal to the MSPB alleging discrimination, and the MSPB
dismisses the appeal for lack of jurisdiction, the agency must notify
the aggrieved person of his right to contact an EEO Counselor within
forty-five days of receipt of the notice and to file an EEO complaint.
In addition, this regulation provides that the date of the initial EEO
Counselor contact will be deemed to be the date on which the MSPB appeal
was filed 29 C.F.R. § 1614.302(b).
In the present case, the alleged discriminatory act occurred on May
30, 1997, when complainant was not recommended for the Systems Analyst
position. Therefore, in order to be within the forty-five day limitation
period, complainant would have had to contact an EEO Counselor by July 14,
1997. Since complainant originally filed a mixed case appeal which was
dismissed by the MSPB for lack of jurisdiction, the date of the initial
EEO Counselor contact is the date on which the MSPB appeal was filed.
The record shows that complainant filed an MSPB appeal on July 3, 1997;
therefore, his initial EEO Counselor contact was timely.
Although complainant filed an MSPB appeal, his appeal was dismissed by
the Board for jurisdictional reasons on November 3, 1997. According to
29 C.F.R. § 1614.302(b), when the MSPB dismisses a mixed case appeal on
jurisdictional grounds, the agency is required to promptly notify the
individual in writing of the right to contact an EEO Counselor within
forty-five days of receipt of this notice and to file an EEO complaint.
In the present case, the record reveals that the agency sent complainant
the requisite notice of his right to contact an EEO Counselor on December
24, 1997. In addition, the record reveals that complainant requested
EEO counseling from the headquarters EEO office on January 27, 1998.
Thus, complainant timely contacted an EEO Counselor within forty-five
days of receipt of the requisite notice from the agency.
Final Decision:
Accordingly, the agency's decision to dismiss complainant's complaint was improper, and is hereby REVERSED. | Quincy Turner v. United States Postal Service
01985502
February 11, 2000
Quincy Turner, )
Complainant, )
)
v. ) Appeal No. 01985502
William J. Henderson, ) Agency No. 1H-374-0046-98
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On July 7, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on June 18, 1998,
pertaining to 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. and 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
bases of race (Afro-American), sex (male), color (black), age (47),
and in retaliation for prior EEO activity when:
On May 30, 1997, complainant was not recommended for the position of
Systems Analyst, EAS-19.
The agency dismissed complainant's complaint on the grounds of untimely
EEO Counselor contact. In its final decision, the agency noted that
complainant pursued the agency's May 30, 1997 decision through a
Merit System Protection Board (MSPB) appeal. The agency claimed that
complainant was notified from MSPB that his appeal was dismissed due to
lack of jurisdiction on November 3, 1997, and that the decision became
final on December 8, 1997. The agency claimed that since complainant did
not contact the Tennessee EEO Office until March 4, 1998, his contact
was beyond the forty-five day limitation period and, therefore, his
complaint was untimely.
On appeal, complainant claims that he did meet the forty-five day contact
requirement and that therefore his complaint should not be dismissed.
Complainant concedes that his MSPB appeal was dismissed due to lack of
jurisdiction on November 3, 1997, and that the decision became final on
December 8, 1997. However, complainant states that the MSPB decision
did not inform him that he had forty-five days to seek EEO Counseling.
Complainant states that on December 24, 1997, he received a letter from
the EEO Compliance and Appeals Coordinator, Southeast/Southwest Area
Office, stating that he should contact the agency's headquarters office
in order to initiate EEO counseling which complainant claims he did
by sending a certified letter on January 24, 1997, to the headquarters
EEO office. Complainant then states that he received an acknowledgment
letter from the headquarters EEO office which stated that complainant's
request for counseling would be processed by the Southeast/Southwest
Area Office. When complainant did not hear from the Southeast/Southwest
Office, he went to see a counselor in person on March 4, 1998.
The record shows that complainant filed an MSPB appeal regarding the
agency's decision not to promote him on July 3, 1997. According to the
record, the MSPB issued a decision on November 3, 1997, which dismissed
the appeal based on jurisdictional grounds. The record also contains a
December 24, 1997 letter to complainant from the agency's headquarters
EEO Office which informed complainant of his right to contact an EEO
Counselor within forty-five days of receipt of the notice from the
Board. In addition, the record contains a January 27, 1998 letter from
complainant to the agency's headquarters EEO Office in which complainant
requested EEO Counseling. Also included in the record is a February
6, 1998 letter from the headquarters EEO Office to complainant which
informed complainant that his complaint would be forwarded to the
Southeast/Southwest EEO Office and would be processed there.
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, 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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
According to 64 Fed. Reg. 37,644 37,659 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. § 1614.302(b)), if a person files
a mixed case appeal to the MSPB alleging discrimination, and the MSPB
dismisses the appeal for lack of jurisdiction, the agency must notify
the aggrieved person of his right to contact an EEO Counselor within
forty-five days of receipt of the notice and to file an EEO complaint.
In addition, this regulation provides that the date of the initial EEO
Counselor contact will be deemed to be the date on which the MSPB appeal
was filed 29 C.F.R. § 1614.302(b).
In the present case, the alleged discriminatory act occurred on May
30, 1997, when complainant was not recommended for the Systems Analyst
position. Therefore, in order to be within the forty-five day limitation
period, complainant would have had to contact an EEO Counselor by July 14,
1997. Since complainant originally filed a mixed case appeal which was
dismissed by the MSPB for lack of jurisdiction, the date of the initial
EEO Counselor contact is the date on which the MSPB appeal was filed.
The record shows that complainant filed an MSPB appeal on July 3, 1997;
therefore, his initial EEO Counselor contact was timely.
Although complainant filed an MSPB appeal, his appeal was dismissed by
the Board for jurisdictional reasons on November 3, 1997. According to
29 C.F.R. § 1614.302(b), when the MSPB dismisses a mixed case appeal on
jurisdictional grounds, the agency is required to promptly notify the
individual in writing of the right to contact an EEO Counselor within
forty-five days of receipt of this notice and to file an EEO complaint.
In the present case, the record reveals that the agency sent complainant
the requisite notice of his right to contact an EEO Counselor on December
24, 1997. In addition, the record reveals that complainant requested
EEO counseling from the headquarters EEO office on January 27, 1998.
Thus, complainant timely contacted an EEO Counselor within forty-five
days of receipt of the requisite notice from the agency.
Accordingly, the agency's decision to dismiss complainant's complaint
was improper, and is hereby REVERSED. The complaint is REMANDED to the
agency for further processing in accordance with this decision and the
Order below.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 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 an
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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. § 1614.409).
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 (R1199)
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:
February 11, 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. | [
"Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)",
"29 C.F.R. § 1614.105(a)",
"29 C.F.R. § 1614.302(b)",
"29 C.F.R. § 1614.108",
"29 C.F.R. § 1614.503(a)",
"29 C.F.R. § 1614.503(g)",
"29 C.F.R. § 1614.409",
"29 C.F.R. § 1614.405",
"29 C.F.R. § 1614.604",
"29 C.F.R. ... | [
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0... | |
285 | https://www.eeoc.gov/sites/default/files/decisions/2022_04_20/2022000690.pdf | 2022000690.pdf | PDF | application/pdf | 9,845 | Odis H.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. | October 15, 2021 | Appeal Number: 2022000690
Background:
At the time of events giving rise to this complaint, Complainan t worked as a Shipfitter, WG -
3820-05 at the Agency’s Pearl Harbor Naval Shipyard in Hawaii. On September 15, 2021, Complainant filed a formal complaint alleging that the Agency
subjected him to discrimination on the bases of disability and repri sal for prior protected EEO
activity when:
1. On April 7, 2020 Complainant was issued a letter and attached memo dated
March 26, 2020 which gave the intent to revoke his security clearance eligibility.
2. On May 4, 2020, the Production Resources Operations Manager terminated Complainant’s employment during his probationary period.
In a final decision dated October 15, 2021, the A gency dismissed C omplainant's complaint on
the basis that it was initiated by untimely EEO counselor contact. The Agency noted that
Complainant waited more than twelve months to raise the issue with the EEO Counselor.
Complainant submitted a statement on appeal, arguing that the 45- day time limit should be
extended beca use he “ was misinformed of the filing process and which package to submit .”
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) provides that an aggrieved person must initiate
contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or within 45 days of the effective date of a personnel action. This period may be extended when the complainant shows that he was not n otified of the time limits and was not
otherwise aware of them; that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred; that despite due diligence he was prevented by circumstances beyond her c ontrol from contacting an EEO Counselor within the time limits;
or for other reasons considered sufficient by the agency or the Commission. 29 C.F.R. § 1614.105(a)(2) .
It is well settled that EEO counselor contact for pu rposes of tolling the 45- day time limit requires
at a minimum that the complainant intend to pursue EEO counseling when he initiates EEO
contact. Snyder v. Department of Defense , EEOC No. 05901061 (November 1, 1990)
.
Here, email correspondence shows that Complainant initially contacted the EEO office about his
termination on May 7, 2020. On May 8, 2020, Complainant was provided the EEO forms and, on
May 11, 2020, Complainant and the EEO Counselor discussed and reviewed the EE O forms and
Complainant indicated that he was unsure if he wanted to pursue a n informal complaint. The
EEO Counselor requested a response by May 14, 2020, as to whether he wanted to pursue an
informal complaint and provided Complainant a pre -complaint election form. Since the EEO
Counselor did not hear from Complainant, she emailed him again on May 18, 2020, requesting a
response by May 20, 2020.
An email dated May 22, 2020, indicates that, as of that date, the EEO Counselor had not received
a response or the EEO pre -complaint forms, there was insufficient information to process his
complaint , and Complainant’s EEO contac t was closed due to failure to pursue counseling. The
email advises that Complainant “must seek counseling on alleged discriminatory matt ers within
45 calendar days of the incident or personnel action.” Thus, we find the record establishes that, although C omplainant contacted the EEO office on May 7, 2020, he did not indicate an intent to
pursue the EEO process at that time.
The record s hows that Complainant did not contact the EEO office intending to file an EEO
complaint regarding his termination until June 16, 2021, which is over a year after the effective
date of his termination.
On appeal, Complainant argues that the 45 -day time lim it should be extended because he was
misinformed about the filing process and which package to submit. He asserts that he was
advised to file with DOD CAF and he tried calling to follow up on May 18, 2020, but received
no response. He asserts that had he k nown what was going on, he would have continued the EEO
process. We have considered his arguments and find Complainant has failed to provide sufficient
justification for extending or tolling the time limit.
Final Decision:
Accordingly, the Agency's final decision dism issing Complainant's complaint is AFFIRMED. | Odis H.,1
Complainant,
v.
Carlos Del Toro,
Secretary,
Department of the Navy,
Agency.
Appeal No. 2022000690
Agency No. DON 21-32253-00847
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated October 15, 2021, dismissing his complaint
alleging unlawful employment discrimination in violation of Title VII of the Civil Rights Act of
1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainan t worked as a Shipfitter, WG -
3820-05 at the Agency’s Pearl Harbor Naval Shipyard in Hawaii. On September 15, 2021, Complainant filed a formal complaint alleging that the Agency
subjected him to discrimination on the bases of disability and repri sal for prior protected EEO
activity when:
1. On April 7, 2020 Complainant was issued a letter and attached memo dated
March 26, 2020 which gave the intent to revoke his security clearance eligibility.
2. On May 4, 2020, the Production Resources Operations Manager terminated Complainant’s employment during his probationary period.
In a final decision dated October 15, 2021, the A gency dismissed C omplainant's complaint on
the basis that it was initiated by untimely EEO counselor contact. The Agency noted that
Complainant waited more than twelve months to raise the issue with the EEO Counselor.
Complainant submitted a statement on appeal, arguing that the 45- day time limit should be
extended beca use he “ was misinformed of the filing process and which package to submit .”
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) provides that an aggrieved person must initiate
contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or within 45 days of the effective date of a personnel action. This period may be extended when the complainant shows that he was not n otified of the time limits and was not
otherwise aware of them; that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred; that despite due diligence he was prevented by circumstances beyond her c ontrol from contacting an EEO Counselor within the time limits;
or for other reasons considered sufficient by the agency or the Commission. 29 C.F.R. § 1614.105(a)(2) .
It is well settled that EEO counselor contact for pu rposes of tolling the 45- day time limit requires
at a minimum that the complainant intend to pursue EEO counseling when he initiates EEO
contact. Snyder v. Department of Defense , EEOC No. 05901061 (November 1, 1990)
.
Here, email correspondence shows that Complainant initially contacted the EEO office about his
termination on May 7, 2020. On May 8, 2020, Complainant was provided the EEO forms and, on
May 11, 2020, Complainant and the EEO Counselor discussed and reviewed the EE O forms and
Complainant indicated that he was unsure if he wanted to pursue a n informal complaint. The
EEO Counselor requested a response by May 14, 2020, as to whether he wanted to pursue an
informal complaint and provided Complainant a pre -complaint election form. Since the EEO
Counselor did not hear from Complainant, she emailed him again on May 18, 2020, requesting a
response by May 20, 2020.
An email dated May 22, 2020, indicates that, as of that date, the EEO Counselor had not received
a response or the EEO pre -complaint forms, there was insufficient information to process his
complaint , and Complainant’s EEO contac t was closed due to failure to pursue counseling. The
email advises that Complainant “must seek counseling on alleged discriminatory matt ers within
45 calendar days of the incident or personnel action.” Thus, we find the record establishes that, although C omplainant contacted the EEO office on May 7, 2020, he did not indicate an intent to
pursue the EEO process at that time.
The record s hows that Complainant did not contact the EEO office intending to file an EEO
complaint regarding his termination until June 16, 2021, which is over a year after the effective
date of his termination.
On appeal, Complainant argues that the 45 -day time lim it should be extended because he was
misinformed about the filing process and which package to submit. He asserts that he was
advised to file with DOD CAF and he tried calling to follow up on May 18, 2020, but received
no response. He asserts that had he k nown what was going on, he would have continued the EEO
process. We have considered his arguments and find Complainant has failed to provide sufficient
justification for extending or tolling the time limit.
Accordingly, the Agency's final decision dism issing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0920)
The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that:
1. The appellate decision involved a clearly erroneous inter pretation 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thir ty (30) calendar days of receipt of this decision. If the party requesting
reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration . A party shall h ave twenty
(20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO M D-110), at Chap. 9 § VII.B
(Aug. 5, 2015).
Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx
Alternatively, Complainant can submit his or her request and arguments to th e Director, Office
of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addresse d to 131 M Street, NE,
Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C. F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s
Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request
and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her r equest via the EEOC Public Portal, in which case no proof of
service is required.
Failure to file within the 30 -day time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the
request. Any supporting documentation must be submitted together with the request for
reconsideration. The Commission will consider requests for reconsidera tion 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 (S0610)
You have the right to file a civil action in an appropriate United States District Court within
ninety (90) c alendar 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 offic ial title. Failure to do
so may result in the dismissal of your case in cou rt. “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 pro cessing of your complaint .
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission fro m the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for wa iver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the p aragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
March 7, 2022
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286 | https://www.eeoc.gov/sites/default/files/decisions/2023_04_21/2021004252.pdf | 2021004252.pdf | PDF | application/pdf | 13,489 | Valentine P.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. | July 14, 2021 | Appeal Number: 2021004252
Case Facts:
On July 14, 2021, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
June 17, 2021, final order concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Commission AFFIRM S the Agency’s final order.
At the time of events giving rise to this complaint, Complainant worked as a n Equal
Employment (EEO) Opportunity Specialist at the Agency’s Commander, Region Mid- Atlantic ,
Naval Station in Norfolk, Virginia .
On November 7, 2019, Complainant filed an EEO complaint alleging that from May 9, 2019,
until August 28, 2019, the Deputy EEO Director subjected him to a hostile work environment
and discrimination based on his race (African American), and sex (male) when :
1. on or about August 27, 2019, Complainant informed the Deputy EEO Director aga in of
the continuous inappropriate behaviors directed towards Complainant by a coworker (Coworker) including:
a. on or about May 2, 2019, Coworker made comment to Complainant that she used
to like the San Francisco 49ers before they got that stupid black qua rterback ;
b. around June 2019, Coworker informed Complainant that she and the Deputy EEO
Director would be changing Complainant’s work schedule from Maxi -flex;
c. on or about May 9, 2019, the Deputy EEO Director told the office that Coworker
was her favorite;
d. on or about May 14, 2019, the Deputy EEO Director revealed Complainant’s
health issues to C oworker ;
e. on or about May 30, 2019, the Deputy EEO Director instructed Complainant to
send her an email every morning upon arrival and departure ;
f. on or about June 21, 2019, the Deputy EEO Director addressed Complainant’s
timecard with others in the office via email and his coworkers replied in a
derogatory manner ; and
g. on or about August 28, 2019, the Deputy EEO Director told Complainant to not
send emails outside of t he Agency because he contacted higher EEO m anagement
about the harassment and fear of retaliation .
2. Complainant alleged he was discriminated against based on reprisal (prior EEO activity) when:
a. on or about August 27, 2019, the Deputy EEO Director info rmed Complainant
she wasn't going to approve his telework request ;
b. on or about September 5, 2019, the Deputy EEO Director confiscated
Complainant’s desktop computer ;
c. on or about September 9, 2019, the Deputy EEO Director confiscated
Complainant ’s laptop c omputer ; and
d. on or about September 10, 2019, Complainant w as placed in a non- duty status; his
identification card was confiscated, and he was escorted off the base by security .
3. Complainant alleges he was discriminated against on the bases of race (Afric an
American) and reprisal (prior EEO activity) when the De puty EEO Director and the
Executive Director:
a. placed Complainant on Administrative Leave for months ; and
b. ultimately terminated Complainant, making him ineligible for needed security
clearance, on o r about February 2020.
4. Complainant alleges he was discriminated against and subjected to a hostile work
environment based on race (African American) and reprisal (prior EEO activity) when the Executive Director informed the Deputy EEO Director of the me eting Complainant
and his coworkers had with the Executive Director on or about June 22, 2019, regarding discrimination by the Deputy EEO Director.
After its investigation into the complain t, the Agency provided Complainant with a copy of the
report of invest igation and notice of right to request a hearing before a n EEOC Ad ministrative
Judge (A J). Complai nant timely requested a hearing . The Agency submitted a Motion for
Summary Judgment , to which Compla inant responded. The AJ subsequently issued a decision by
summary judgment in favor of the Agency.
The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove
discrimination as alleged. The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, C ompl ainant asserts that the AJ erred in granting the Agency’ s Motion for Summary
Judgment and t hus the subsequent final Agency decision was also is sued in error. Complainant
contends that there exist numerous materia l facts in dispute that render a summary judgment
decision inappropriate. Complainant requests that the C ommission find that the AJ’s ruling was
made in error, overturn the Agency ’s final de cision, and award Complainant his requested relief.
In response to the appeal, the Agency asserts Complai nant failed to meet the burden of proof ,
below or on appeal, with respect to his claim o f harassment and discrimination . The Agency
requests that the Commission affirm its final decision .
Legal Analysis:
the Commission AFFIRM S the Agency’s final order.
At the time of events giving rise to this complaint, Complainant worked as a n Equal
Employment (EEO) Opportunity Specialist at the Agency’s Commander, Region Mid- Atlantic ,
Naval Station in Norfolk, Virginia .
On November 7, 2019, Complainant filed an EEO complaint alleging that from May 9, 2019,
until August 28, 2019, the Deputy EEO Director subjected him to a hostile work environment
and discrimination based on his race (African American), and sex (male) when :
1. on or about August 27, 2019, Complainant informed the Deputy EEO Director aga in of
the continuous inappropriate behaviors directed towards Complainant by a coworker (Coworker) including:
a. on or about May 2, 2019, Coworker made comment to Complainant that she used
to like the San Francisco 49ers before they got that stupid black qua rterback ;
b. around June 2019, Coworker informed Complainant that she and the Deputy EEO
Director would be changing Complainant’s work schedule from Maxi -flex;
c. on or about May 9, 2019, the Deputy EEO Director told the office that Coworker
was her favorite;
d. on or about May 14, 2019, the Deputy EEO Director revealed Complainant’s
health issues to C oworker ;
e. on or about May 30, 2019, the Deputy EEO Director instructed Complainant to
send her an email every morning upon arrival and departure ;
f. on or about June 21, 2019, the Deputy EEO Director addressed Complainant’s
timecard with others in the office via email and his coworkers replied in a
derogatory manner ; and
g. on or about August 28, 2019, the Deputy EEO Director told Complainant to not
send emails outside of t he Agency because he contacted higher EEO m anagement
about the harassment and fear of retaliation .
2. Complainant alleged he was discriminated against based on reprisal (prior EEO activity) when:
a. on or about August 27, 2019, the Deputy EEO Director info rmed Complainant
she wasn't going to approve his telework request ;
b. on or about September 5, 2019, the Deputy EEO Director confiscated
Complainant’s desktop computer ;
c. on or about September 9, 2019, the Deputy EEO Director confiscated
Complainant ’s laptop c omputer ; and
d. on or about September 10, 2019, Complainant w as placed in a non- duty status; his
identification card was confiscated, and he was escorted off the base by security .
3. Complainant alleges he was discriminated against on the bases of race (Afric an
American) and reprisal (prior EEO activity) when the De puty EEO Director and the
Executive Director:
a. placed Complainant on Administrative Leave for months ; and
b. ultimately terminated Complainant, making him ineligible for needed security
clearance, on o r about February 2020.
4. Complainant alleges he was discriminated against and subjected to a hostile work
environment based on race (African American) and reprisal (prior EEO activity) when the Executive Director informed the Deputy EEO Director of the me eting Complainant
and his coworkers had with the Executive Director on or about June 22, 2019, regarding discrimination by the Deputy EEO Director.
After its investigation into the complain t, the Agency provided Complainant with a copy of the
report of invest igation and notice of right to request a hearing before a n EEOC Ad ministrative
Judge (A J). Complai nant timely requested a hearing . The Agency submitted a Motion for
Summary Judgment , to which Compla inant responded. The AJ subsequently issued a decision by
summary judgment in favor of the Agency.
The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove
discrimination as alleged. The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, C ompl ainant asserts that the AJ erred in granting the Agency’ s Motion for Summary
Judgment and t hus the subsequent final Agency decision was also is sued in error. Complainant
contends that there exist numerous materia l facts in dispute that render a summary judgment
decision inappropriate. Complainant requests that the C ommission find that the AJ’s ruling was
made in error, overturn the Agency ’s final de cision, and award Complainant his requested relief.
In response to the appeal, the Agency asserts Complai nant failed to meet the burden of proof ,
below or on appeal, with respect to his claim o f harassment and discrimination . The Agency
requests that the Commission affirm its final decision .
ANALYSIS AND FINDINGS
The Co mmission's r egulations allow an AJ to grant summary judgment when he or s he finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genui ne” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving part y. Celote x v. Catrett , 477 U.S. 317, 322- 23 (1986); Oliver v. Digital Equip. Corp. ,
846 F.2d 103, 105 (1st Cir. 1988). A fac t is “material” if it has the pot ential to affect the
outcome of the case. In rendering this appellat e decision , we must scrutiniz e the AJ’ s legal and
factual con clusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. §
1614.405(a)(s tating that a “decision on an appeal from an Agency’s final action shall be based on
a de novo review…” ); see also Equal Employment Opportunity Management Directiv e for 29
C.F.R. Part 1614 (EEO -MD-110), at Chap. 9, § VI.B. ( Aug. 5, 2015) (providing that a n
administrative judge ’s determ ination to issue a decision without a hearing, and the decis ion
itself, will both be reviewed de nov o).
In order to successfully oppose a decision by summary judgment, a c omplainant must identify,
with specificity, facts in dispute either within the reco rd or by producing further supporting
evidence and must further establish that such f acts are materi al un der a pplicable law. Such a
dispute would indicate that a hearing is necessary to produce evidence to support a finding t hat
the Agency was motivated by discriminatory animus. Here, however, Complainant has failed to
establish such a di spute.
For e xample, regarding the improper medi cal disclosure in claim 1(d) , we note that information
about an individual’s diagnosis or symptoms is viewed as confidenti al medic al information. See
Becki P . v. Dep’t of Vet . Aff., EEOC Appeal No. 2019004451 (Sept . 29, 2020) . As suc h,
improper disclosure would constitute a violation. Id. A casual comment, however, may not be a
violation. Id. In Coley v. Dep artment of Transpor tation ¸ EEOC Appeal No. 0120101294 (July
22, 2010), the Commission found that it was not a violation when an a gency attorney disclose d
to a third party stating that the attorney had empathy for th e comp lainant “because of her
personal and mental health his tory.” Id. The Commission held that that statement in Coley did
not concern Complainant’s diagnosis nor consti tute medical informatio n within the purview of
the Rehabilitation Act. Id. Similarly , in claim 1(d), the statement regarding Complainant ’s back
pain neith er concerned Complainant ’s diagnosis nor constituted medical information within the
purview of the Reh abilitation Act.
Ultimately, in revie wing the various claims, and e ven construin g any inferences raised by the
undisputed facts in favor of Complainant, a reasonable fact finder could not find in
Complainant’s favor. Therefore , upon careful review of the AJ’s decision and the evidence of
record, as well as the arguments submitted on appeal , we conclude that th e AJ correctly
determined that the pre ponderance of the evidence did not establish that Complainant was
discriminated again st by the Agency as alleg ed.
Accordi ngly, we AFFIRM the Agency’s final order adopti ng the AJ’s decision. | Valentine P.,1
Complainant,
v.
Carlos Del Toro,
Secretary,
Department of the Navy,
Agency.
Appeal No. 2021004252
Hearing No. 430-2020-00316X
Agency No. DON 20-61463-00517
DECISION
On July 14, 2021, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
June 17, 2021, final order concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Commission AFFIRM S the Agency’s final order.
At the time of events giving rise to this complaint, Complainant worked as a n Equal
Employment (EEO) Opportunity Specialist at the Agency’s Commander, Region Mid- Atlantic ,
Naval Station in Norfolk, Virginia .
On November 7, 2019, Complainant filed an EEO complaint alleging that from May 9, 2019,
until August 28, 2019, the Deputy EEO Director subjected him to a hostile work environment
and discrimination based on his race (African American), and sex (male) when :
1. on or about August 27, 2019, Complainant informed the Deputy EEO Director aga in of
the continuous inappropriate behaviors directed towards Complainant by a coworker (Coworker) including:
a. on or about May 2, 2019, Coworker made comment to Complainant that she used
to like the San Francisco 49ers before they got that stupid black qua rterback ;
b. around June 2019, Coworker informed Complainant that she and the Deputy EEO
Director would be changing Complainant’s work schedule from Maxi -flex;
c. on or about May 9, 2019, the Deputy EEO Director told the office that Coworker
was her favorite;
d. on or about May 14, 2019, the Deputy EEO Director revealed Complainant’s
health issues to C oworker ;
e. on or about May 30, 2019, the Deputy EEO Director instructed Complainant to
send her an email every morning upon arrival and departure ;
f. on or about June 21, 2019, the Deputy EEO Director addressed Complainant’s
timecard with others in the office via email and his coworkers replied in a
derogatory manner ; and
g. on or about August 28, 2019, the Deputy EEO Director told Complainant to not
send emails outside of t he Agency because he contacted higher EEO m anagement
about the harassment and fear of retaliation .
2. Complainant alleged he was discriminated against based on reprisal (prior EEO activity) when:
a. on or about August 27, 2019, the Deputy EEO Director info rmed Complainant
she wasn't going to approve his telework request ;
b. on or about September 5, 2019, the Deputy EEO Director confiscated
Complainant’s desktop computer ;
c. on or about September 9, 2019, the Deputy EEO Director confiscated
Complainant ’s laptop c omputer ; and
d. on or about September 10, 2019, Complainant w as placed in a non- duty status; his
identification card was confiscated, and he was escorted off the base by security .
3. Complainant alleges he was discriminated against on the bases of race (Afric an
American) and reprisal (prior EEO activity) when the De puty EEO Director and the
Executive Director:
a. placed Complainant on Administrative Leave for months ; and
b. ultimately terminated Complainant, making him ineligible for needed security
clearance, on o r about February 2020.
4. Complainant alleges he was discriminated against and subjected to a hostile work
environment based on race (African American) and reprisal (prior EEO activity) when the Executive Director informed the Deputy EEO Director of the me eting Complainant
and his coworkers had with the Executive Director on or about June 22, 2019, regarding discrimination by the Deputy EEO Director.
After its investigation into the complain t, the Agency provided Complainant with a copy of the
report of invest igation and notice of right to request a hearing before a n EEOC Ad ministrative
Judge (A J). Complai nant timely requested a hearing . The Agency submitted a Motion for
Summary Judgment , to which Compla inant responded. The AJ subsequently issued a decision by
summary judgment in favor of the Agency.
The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove
discrimination as alleged. The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, C ompl ainant asserts that the AJ erred in granting the Agency’ s Motion for Summary
Judgment and t hus the subsequent final Agency decision was also is sued in error. Complainant
contends that there exist numerous materia l facts in dispute that render a summary judgment
decision inappropriate. Complainant requests that the C ommission find that the AJ’s ruling was
made in error, overturn the Agency ’s final de cision, and award Complainant his requested relief.
In response to the appeal, the Agency asserts Complai nant failed to meet the burden of proof ,
below or on appeal, with respect to his claim o f harassment and discrimination . The Agency
requests that the Commission affirm its final decision .
ANALYSIS AND FINDINGS
The Co mmission's r egulations allow an AJ to grant summary judgment when he or s he finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genui ne” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving part y. Celote x v. Catrett , 477 U.S. 317, 322- 23 (1986); Oliver v. Digital Equip. Corp. ,
846 F.2d 103, 105 (1st Cir. 1988). A fac t is “material” if it has the pot ential to affect the
outcome of the case. In rendering this appellat e decision , we must scrutiniz e the AJ’ s legal and
factual con clusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. §
1614.405(a)(s tating that a “decision on an appeal from an Agency’s final action shall be based on
a de novo review…” ); see also Equal Employment Opportunity Management Directiv e for 29
C.F.R. Part 1614 (EEO -MD-110), at Chap. 9, § VI.B. ( Aug. 5, 2015) (providing that a n
administrative judge ’s determ ination to issue a decision without a hearing, and the decis ion
itself, will both be reviewed de nov o).
In order to successfully oppose a decision by summary judgment, a c omplainant must identify,
with specificity, facts in dispute either within the reco rd or by producing further supporting
evidence and must further establish that such f acts are materi al un der a pplicable law. Such a
dispute would indicate that a hearing is necessary to produce evidence to support a finding t hat
the Agency was motivated by discriminatory animus. Here, however, Complainant has failed to
establish such a di spute.
For e xample, regarding the improper medi cal disclosure in claim 1(d) , we note that information
about an individual’s diagnosis or symptoms is viewed as confidenti al medic al information. See
Becki P . v. Dep’t of Vet . Aff., EEOC Appeal No. 2019004451 (Sept . 29, 2020) . As suc h,
improper disclosure would constitute a violation. Id. A casual comment, however, may not be a
violation. Id. In Coley v. Dep artment of Transpor tation ¸ EEOC Appeal No. 0120101294 (July
22, 2010), the Commission found that it was not a violation when an a gency attorney disclose d
to a third party stating that the attorney had empathy for th e comp lainant “because of her
personal and mental health his tory.” Id. The Commission held that that statement in Coley did
not concern Complainant’s diagnosis nor consti tute medical informatio n within the purview of
the Rehabilitation Act. Id. Similarly , in claim 1(d), the statement regarding Complainant ’s back
pain neith er concerned Complainant ’s diagnosis nor constituted medical information within the
purview of the Reh abilitation Act.
Ultimately, in revie wing the various claims, and e ven construin g any inferences raised by the
undisputed facts in favor of Complainant, a reasonable fact finder could not find in
Complainant’s favor. Therefore , upon careful review of the AJ’s decision and the evidence of
record, as well as the arguments submitted on appeal , we conclude that th e AJ correctly
determined that the pre ponderance of the evidence did not establish that Complainant was
discriminated again st by the Agency as alleg ed.
Accordi ngly, we AFFIRM the Agency’s final order adopti ng the AJ’s decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0920)
The C ommission may, in its d iscretion, reconsider this appellate decision if Complainant or the
Agency submits a wr itten request that co ntains arguments or evidence that tend to establish that:
1. The appellate decision involved a clearly erroneous interpreta tion of material fact o r
law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operatio ns of the agency.
Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO)
within thirt y (3 0) calendar days of receipt of this decision. If the party requesting
reconsideration elects to file a statem ent or brief in suppor t of the request, that statement or
brief must be filed together with the request for reconsideration . A party shall have t wenty
(20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R . Part 1614 (EEO MD -110), at Chap. 9 § VII.B
(Aug. 5, 2015).
Complainant should submit his or her request for reconsideration, and any statement or brie f in
support of his or her request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx
Alternatively, Complainant c an submit his or her reques t and arguments to the Director, Office
of Federal Operations, Equal Employment Opportunity Commission, via regular mail addr essed
to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washi ngton, DC 20507. In the abs ence of a legible postmark, a complainant’s request to
reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604.
An agency ’s req uest for reconsiderat ion must be submitted in digital format via the EEOC’s
Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Eit her party’s request
and/or statement or brief in opposition must also include proof of service on the ot her pa rty,
unless Complaina nt files his or her request via the EEOC Public Portal, in which case no proof of
service is required.
Failure to file within the 30- day time period will result in dismissal of the party’s request for
reconsideration as untimely, unle ss extenuating circum stances prevented the timely filing of the
request. Any supporting documentation must be submitted together with the request for
reconsideration. The Commission will consider requests for reconsideration filed after the
deadlin e only in very limited circ umstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civi l action in an appropriate United States District Court within
ninety (90) calendar days from the date t hat you receive this decisi on. If you file a civil action,
you must name as the defendant in the complaint the person who is the official Agency head o r
department head, identifying that person by his or her full name and official title. Failure to do
so may r esult in the dismissa l 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 ac tion will terminate t he
administrative processing of your complaint .
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the ci vil action without pa ying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request t he court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appoi ntment of an attorney direc tly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such reques ts do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’ s Right to
File a Civil Acti on for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
February 2, 2023
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287 | https://www.eeoc.gov/sites/default/files/decisions/2023_02_03/2022004648.pdf | 2022004648.pdf | PDF | application/pdf | 13,696 | John M.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency. | August 3, 2022 | Appeal Number: 2022004648
Background:
During the period at issue, Complainant worked as a n Airway Transportation Systems Specialist
at the Agency’s Federal Aviation Administration Bethel Systems Service Center in Bethel,
Alaska.
On February 23, 2022, Complainant initiated EEO Counselor cont act. Informal efforts to resolve
his concerns were unsuccessful.
On June 1, 2022, Complainant filed a fo rmal EEO complaint claiming that the Agency
discriminated agains t him and subjected him to a hostile work environment based on race, color,
and in reprisal for prior protected EEO activity (prior complaint 2019-28555- FAA) when:
1. In February 2021, Complainant’s travel to Bethel was restricted, and when he was
allowed to travel there, his assignment was to work on equipment failures that had
open tickets for months, which no one in the Systems Service Center could fix.
2. On unspecified dates prior to December 2021, after Complainant ordered parts to
repair systems, he was not allowed to travel to make the necessary repairs .
3. In December 2021, the Bering Sea Manager revoked Complainant’s transfer and
told him he could no longer remain in his Systems Service Center .
4. On January 4, 2022, Complainant learned he was intentionally excluded from
emails which were disseminated to staff in the Anchorage District that announced
job opportunities.
On, the Agency dismissed the formal complaint for untimely EEO Counselor contact, pursuant
to 29 C.F.R. § 1614.107(a)(2). The Agency found that Complainant’s initial EEO Counselor
contact was on February 23, 2022, which it found to be well beyond the regulatory 45 -day
limitation period. The Agency also noted that, regarding claim 4, Complainant should have had
reasonable suspicion of being excluded from emailed well before January 4, 2022. The instant appeal followed. On appeal, Complainant argues, through his representative, that he timely contacted the EEO Counselor. Complainant asserts that it was not until January 12, 2022, that he realized that he had been excluded from the emails distributed to staff announcing
upcoming job vacancies , which was withing the 45- day limitation period of his February 23,
2022 initial EEO Counselor contact.
Legal Analysis:
EEOC Regulation 29 C .F.R. § 1614.105(a)(1) requires that complaints of discrimination should
be brought to the attention of the Equal Employment Opportunity Counselor within forty- five
(45) days of the date of the matter alleged to be discriminatory or, in the case of personn el action,
within forty -five (45) days of the effective date of the action. The Commission has adopted a
“reasonable suspicion” standard (as op posed to a “supportive facts” standard) to determine when
the forty -five (45) day limitation period is triggered. See Howard v. Dep’t of the Navy, EEOC
Request No. 05970852 (Feb. 11, 1999). Thus, 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.
EEOC regulations provide that the Agency or the Commission shall extend the time limits when
the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not ha ve known that the discriminatory matter
or personnel action occurred, that despite due di ligence he was prevented by circumstances
beyond his control from contacting the Counselor within the time limits, or for other reasons
considered sufficient by the Agency or the Commission.
Because Complainant has alleged allegations of discriminatory harassment , at least one of the
allegations proffered must have occurred within the 45- day limitation period in order to
determine that he timely contacted an EEO counselor. See National Railroad Passenger Corp. v.
Morgan, 536 U.S. 101, 122 S. Ct. 2061 (2002) (a hos tile work environment will not be time
barred if all acts constituting the claim are part of the same unlawful practice and at least one act
falls within the f iling period).
The record reflects that the Agency properly dismissed the formal complaint for untimely EEO
Counselor contact. T he last alleged discrete act Complainant identifies in his formal complaint
occurred on November 29, 2021 (Complainant was notified new managers had been hired even
though Complainant had never received email notification of the vacancy announcement ). We
note that this alleged incident occurred more than 45 days after Complainant initiated EEO Counselor contact on February 23, 2022.
Complainant indicated in his formal complaint that he did not reasonably suspect that the Agency had discriminated against him by removing his email address from the job announcements until January 5, 2022. However, Complainant clarifies on appeal that he did not
develop reasonable suspicion of discrimination until January 12, 2022. Nevertheless , the record
reflect s that Complainant should have reasonably suspected discrimination well before either of
these dates. Complainant acknowledges in his appella te brief that he was notified as early as
May 2021, that new employees had been hired even though “he had not seen any new job
announcements.” During this time, Complainant explained that he was informed that more
management positions would becom e availabl e, and he should make sure his resume was ready.
However, Complainant explains in his appellate brief that he never received an email notification about the vacancies and learned , “at the end of November 2021 . . . that several new permanent
managers had been hired.” Complainant notes in his appellate brief that he “wondered why he hadn’t seen the job announcements to apply for the open job positions.” Thereafter, Complainant further explains that he waited until he returned to the office in Janu ary 2022,
3 to ask two co-
2 Complainant indicated in his formal complain t that he initiated EEO Counselor contact on
January 28, 2022. However, documentation in the record fails to substantiate this claim. The record indicates that the EEO Counselor emailed Complainant, on February 17, 2022, the website links for the pre -comp laint form which Complainant completed and submitted on
February 23, 2022, which is the date the EEO Counselor identifies as the date that Complainant
first initiated EEO Counselor contact. Although Complainant may have had discussions with the
EEO Counselor prior to February 23, 2022, those discuss ions, if simply informational, do not
demonstrate an intent to file an EEO complaint. It is settled that a complainant satisfies the criterion of EEO Counselor contact by contacting an agency official logically connected with the EEO process and by exhibiting an intent to begin the EEO process. See Floyd v. National Guard
Bureau , EEOC Request No . 05890086 (June 22, 1989). Therefore, we find that the record
supports that Complainant initiated EEO Counselor contact on February 23, 2022.
3 Prior to January 2022, employees, including Complainant, were required to return to the office
after teleworking in response to the COVID-19 pandemic.
workers to verify if they had received either job announcements , and whether his email address
had been included. In a January 5, 2023 email, Complainant confirmed that he learned that his
email address was not included on the emailed job announcements and questioned whether his
email was not omitted in “retaliation from a previous EEO .” Because the Commission uses a
“reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when
the 45- day limitation period is triggered, the time limit was triggered when Complainant was
notified that individuals had been selected in May 2021 and November 2021 for positions he had not received emailed vacancy notice s, not when Complainant learned of supporting evidenc e of
discrimination (i.e. confirmation from his co -workers that his email was not included on the job
announcements). | John M.,1
Complainant,
v.
Pete Buttigieg,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 2022004648
Agency No. 2022-29436- FAA -06
DECISION
Complainant f iled a timely appeal with the Equal Employment Opportunity Commission (EEOC
or C ommission) from the Agency's final decision dated August 3, 2022, dismissing a formal
complaint alleging unlawful employment discrimination in violation of Title VII of the Civ il
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
BACKGROUND
During the period at issue, Complainant worked as a n Airway Transportation Systems Specialist
at the Agency’s Federal Aviation Administration Bethel Systems Service Center in Bethel,
Alaska.
On February 23, 2022, Complainant initiated EEO Counselor cont act. Informal efforts to resolve
his concerns were unsuccessful.
On June 1, 2022, Complainant filed a fo rmal EEO complaint claiming that the Agency
discriminated agains t him and subjected him to a hostile work environment based on race, color,
and in reprisal for prior protected EEO activity (prior complaint 2019-28555- FAA) when:
1. In February 2021, Complainant’s travel to Bethel was restricted, and when he was
allowed to travel there, his assignment was to work on equipment failures that had
open tickets for months, which no one in the Systems Service Center could fix.
2. On unspecified dates prior to December 2021, after Complainant ordered parts to
repair systems, he was not allowed to travel to make the necessary repairs .
3. In December 2021, the Bering Sea Manager revoked Complainant’s transfer and
told him he could no longer remain in his Systems Service Center .
4. On January 4, 2022, Complainant learned he was intentionally excluded from
emails which were disseminated to staff in the Anchorage District that announced
job opportunities.
On, the Agency dismissed the formal complaint for untimely EEO Counselor contact, pursuant
to 29 C.F.R. § 1614.107(a)(2). The Agency found that Complainant’s initial EEO Counselor
contact was on February 23, 2022, which it found to be well beyond the regulatory 45 -day
limitation period. The Agency also noted that, regarding claim 4, Complainant should have had
reasonable suspicion of being excluded from emailed well before January 4, 2022. The instant appeal followed. On appeal, Complainant argues, through his representative, that he timely contacted the EEO Counselor. Complainant asserts that it was not until January 12, 2022, that he realized that he had been excluded from the emails distributed to staff announcing
upcoming job vacancies , which was withing the 45- day limitation period of his February 23,
2022 initial EEO Counselor contact.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C .F.R. § 1614.105(a)(1) requires that complaints of discrimination should
be brought to the attention of the Equal Employment Opportunity Counselor within forty- five
(45) days of the date of the matter alleged to be discriminatory or, in the case of personn el action,
within forty -five (45) days of the effective date of the action. The Commission has adopted a
“reasonable suspicion” standard (as op posed to a “supportive facts” standard) to determine when
the forty -five (45) day limitation period is triggered. See Howard v. Dep’t of the Navy, EEOC
Request No. 05970852 (Feb. 11, 1999). Thus, 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.
EEOC regulations provide that the Agency or the Commission shall extend the time limits when
the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not ha ve known that the discriminatory matter
or personnel action occurred, that despite due di ligence he was prevented by circumstances
beyond his control from contacting the Counselor within the time limits, or for other reasons
considered sufficient by the Agency or the Commission.
Because Complainant has alleged allegations of discriminatory harassment , at least one of the
allegations proffered must have occurred within the 45- day limitation period in order to
determine that he timely contacted an EEO counselor. See National Railroad Passenger Corp. v.
Morgan, 536 U.S. 101, 122 S. Ct. 2061 (2002) (a hos tile work environment will not be time
barred if all acts constituting the claim are part of the same unlawful practice and at least one act
falls within the f iling period).
The record reflects that the Agency properly dismissed the formal complaint for untimely EEO
Counselor contact. T he last alleged discrete act Complainant identifies in his formal complaint
occurred on November 29, 2021 (Complainant was notified new managers had been hired even
though Complainant had never received email notification of the vacancy announcement ). We
note that this alleged incident occurred more than 45 days after Complainant initiated EEO Counselor contact on February 23, 2022.
Complainant indicated in his formal complaint that he did not reasonably suspect that the Agency had discriminated against him by removing his email address from the job announcements until January 5, 2022. However, Complainant clarifies on appeal that he did not
develop reasonable suspicion of discrimination until January 12, 2022. Nevertheless , the record
reflect s that Complainant should have reasonably suspected discrimination well before either of
these dates. Complainant acknowledges in his appella te brief that he was notified as early as
May 2021, that new employees had been hired even though “he had not seen any new job
announcements.” During this time, Complainant explained that he was informed that more
management positions would becom e availabl e, and he should make sure his resume was ready.
However, Complainant explains in his appellate brief that he never received an email notification about the vacancies and learned , “at the end of November 2021 . . . that several new permanent
managers had been hired.” Complainant notes in his appellate brief that he “wondered why he hadn’t seen the job announcements to apply for the open job positions.” Thereafter, Complainant further explains that he waited until he returned to the office in Janu ary 2022,
3 to ask two co-
2 Complainant indicated in his formal complain t that he initiated EEO Counselor contact on
January 28, 2022. However, documentation in the record fails to substantiate this claim. The record indicates that the EEO Counselor emailed Complainant, on February 17, 2022, the website links for the pre -comp laint form which Complainant completed and submitted on
February 23, 2022, which is the date the EEO Counselor identifies as the date that Complainant
first initiated EEO Counselor contact. Although Complainant may have had discussions with the
EEO Counselor prior to February 23, 2022, those discuss ions, if simply informational, do not
demonstrate an intent to file an EEO complaint. It is settled that a complainant satisfies the criterion of EEO Counselor contact by contacting an agency official logically connected with the EEO process and by exhibiting an intent to begin the EEO process. See Floyd v. National Guard
Bureau , EEOC Request No . 05890086 (June 22, 1989). Therefore, we find that the record
supports that Complainant initiated EEO Counselor contact on February 23, 2022.
3 Prior to January 2022, employees, including Complainant, were required to return to the office
after teleworking in response to the COVID-19 pandemic.
workers to verify if they had received either job announcements , and whether his email address
had been included. In a January 5, 2023 email, Complainant confirmed that he learned that his
email address was not included on the emailed job announcements and questioned whether his
email was not omitted in “retaliation from a previous EEO .” Because the Commission uses a
“reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when
the 45- day limitation period is triggered, the time limit was triggered when Complainant was
notified that individuals had been selected in May 2021 and November 2021 for positions he had not received emailed vacancy notice s, not when Complainant learned of supporting evidenc e of
discrimination (i.e. confirmation from his co -workers that his email was not included on the job
announcements).
CONCLUSION
The Agency’s final decision dismissing the formal complaint on the grounds of untimely EEO
Counselor contact is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0920)
The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact o r
law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the agency.
Requests for reconsideration must be filed w ith EEOC’s Office of Federal Operations (OFO)
within thirty (30) calendar days of rec eipt of this decision. If the party requesting
reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed togeth er with the request for reconsideration . A party shall have twenty
(20) calendar days from receipt of another party’s request for reconsideration within which to
submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opport unity Management Directive for 29 C.F.R. Part 1614 (EEO MD -110), at Chap. 9 § VII.B
(Aug. 5, 2015).
Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx
Alternatively, C omplainant can submit his or her request and arguments to the Director, Office
of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed
to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Stree t, NE,
Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsid er shall be deemed timely filed if OFO receives it by mail within five days of the
expiration of the applicable filing period. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’ s request
and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required.
Failure to file within the 30 -d
ay time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supportin g documentation must be submitted together with the request for
recon sideration. 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 FI LE A CIVIL ACTION (S0610)
You have the right to file a c ivil 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 hea d 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 natio nal 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may reques t the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests.
Such req uests do not alter the time limits for filing a civil action (please read the paragraph titled
Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
Carlton M. Hadden’s signature
Carlton M. Hadden, Director Office of Federal Operations
December 2 2, 2022
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288 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01985252.txt | 01985252.txt | TXT | text/plain | 12,629 | June 1, 1998 | Appeal Number: 01985225
Case Facts:
Appellant filed an appeal with this Commission from a final agency
decision 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. The final agency decision was received by
appellant on June 1, 1998. The appeal was postmarked June 23, 1998.
Accordingly, the appeal is timely (see 29 C.F.R. § 1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
The appellant filed a formal complaint on April 6, 1998, alleging
that he was the victim of unlawful employment discrimination on the
basis of race (Black), color (black) and reprisal (prior EEO activity)
when he was terminated on April 15, 1997. After initially accepting
this allegation for investigation on May 4, 1998, the agency issued a
final agency decision on May 28, 1998, dismissing the complaint under
29 C.F.R. § 1614.107(b) for failure to timely contact an EEO counselor.<1>
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints
of discrimination should be brought to the attention of the Equal
Employment Opportunity Counselor within forty-five (45) days of the
date of the matter alleged to be discriminatory or, in the case of a
personnel action, within forty-five (45) days of the effective date
of the action. The Commission has adopted a "reasonable suspicion"
standard (as opposed to a "supportive facts" standard) to determine
when the forty-five (45) day limitation period is triggered. See Ball
v. United States Postal Service, EEOC Request No. 05880247 (July 6, 1988).
Thus, 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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission. 29 C.F.R. § 1614.105(a)(2).
In the instant case, a review of the EEO Counselor's Inquiry report
provided by the agency reveals that appellant initiated contact with an
EEO counselor on March 17, 1998, significantly more than 45 days after
the alleged discriminatory termination of April 15, 1997.
On appeal, appellant alleges that he contacted the EEO counselor assigned
to the Orlando Processing and Distribution Center of Florida on or
about April 16, 1997 and informed that counselor that he believed his
termination was the result of discrimination. The appellant also alleges
that on April 17, 1997 he was issued an EEO informal complaint number
(1-H-328-0026-97), but that he received no other information concerning
his rights or any actions required of him to further his EEO claim and as
a result assumed that his claim was being handled by the EEO office<2>.
Appellant argues that his complaint should therefore not be dismissed
for failure to timely contact an EEO counselor, but should be remanded
for further review and investigation.
The agency did not address this allegation on appeal. However, even
assuming that appellant did initially contact an EEO counselor on or
about April 16, 1997, Commission precedent holds that for purposes of
tolling the time limit, the appellant must intend by initiating contact
to pursue EEO counseling. Snyder v. Department of Defense, EEOC Request
No. 0501061 (November 1, 1990). Here, on April 17, 1997, rather than
pursue counseling, appellant filed a union grievance in an effort to
reverse the termination. His grievance was denied by letter dated May
23, 1997.<3> He did not actively pursue counseling until March 18, 1998,
almost a year after the allegedly discriminatory event and more than 7
months after he failed to achieve success via the grievance process.<4>
Appellant offers no excuse for this passivity other than claiming it
was the EEO counselor's fiduciary duty to communicate with him.<5>
Appellant's contention that he initially contacted an EEO counselor
around April 16, 1997 and then assumed his claim was being handled
is insufficient to justify an extension of the applicable time limit
for this length of time. See Baldwin County Welcome Center v. Brown,
466 U.S. 147, 151 (1984) (per curiam) ("One who fails to act diligently
cannot invoke equitable principles to excuse lack of diligence"); Rys
v. United States Postal Service, 886 F.2d 443, 446 (1st Cir. 1989) ("to
find succor in equity a Title VII plaintiff must have diligently pursued
her claim"). Furthermore, appellant's use of the negotiated grievance
process does not toll the time limits for initiating EEO counseling.
Schermerhorn v. United States Postal Service, EEOC Request No. 05940729
(February 10, 1995).
Final Decision:
Accordingly, the appeal is timely (see 29 C.F.R. § 1614.402(a)), and is accepted in accordance with EEOC Order No. 960, as amended. The appellant filed a formal complaint on April 6, 1998, alleging that he was the victim of unlawful employment discrimination on the basis of race (Black), color (black) and reprisal (prior EEO activity) when he was terminated on April 15, 1997. After initially accepting this allegation for investigation on May 4, 1998, the agency issued a final agency decision on May 28, 1998, dismissing the complaint under 29 C.F.R. § 1614.107(b) for failure to timely contact an EEO counselor.<1> EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6, 1988). Thus, 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. EEOC Regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. 29 C.F.R. § 1614.105(a)(2). In the instant case, a review of the EEO Counselor's Inquiry report provided by the agency reveals that appellant initiated contact with an EEO counselor on March 17, 1998, significantly more than 45 days after the alleged discriminatory termination of April 15, 1997. On appeal, appellant alleges that he contacted the EEO counselor assigned to the Orlando Processing and Distribution Center of Florida on or about April 16, 1997 and informed that counselor that he believed his termination was the result of discrimination. The appellant also alleges that on April 17, 1997 he was issued an EEO informal complaint number (1-H-328-0026-97), but that he received no other information concerning his rights or any actions required of him to further his EEO claim and as a result assumed that his claim was being handled by the EEO office<2>. Appellant argues that his complaint should therefore not be dismissed for failure to timely contact an EEO counselor, but should be remanded for further review and investigation. The agency did not address this allegation on appeal. However, even assuming that appellant did initially contact an EEO counselor on or about April 16, 1997, Commission precedent holds that for purposes of tolling the time limit, the appellant must intend by initiating contact to pursue EEO counseling. Snyder v. Department of Defense, EEOC Request No. 0501061 (November 1, 1990). Here, on April 17, 1997, rather than pursue counseling, appellant filed a union grievance in an effort to reverse the termination. His grievance was denied by letter dated May 23, 1997.<3> He did not actively pursue counseling until March 18, 1998, almost a year after the allegedly discriminatory event and more than 7 months after he failed to achieve success via the grievance process.<4> Appellant offers no excuse for this passivity other than claiming it was the EEO counselor's fiduciary duty to communicate with him.<5> Appellant's contention that he initially contacted an EEO counselor around April 16, 1997 and then assumed his claim was being handled is insufficient to justify an extension of the applicable time limit for this length of time. See Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151 (1984) (per curiam) ("One who fails to act diligently cannot invoke equitable principles to excuse lack of diligence"); Rys v. United States Postal Service, 886 F.2d 443, 446 (1st Cir. 1989) ("to find succor in equity a Title VII plaintiff must have diligently pursued her claim"). Furthermore, appellant's use of the negotiated grievance process does not toll the time limits for initiating EEO counseling. Schermerhorn v. United States Postal Service, EEOC Request No. 05940729 (February 10, 1995). Accordingly, the agency's decision to dismiss appellant's complaint for failure to timely initiate EEO counseling is AFFIRMED. | Raymon L. Crook, )
Appellant, )
)
v. ) Appeal No. 01985225
) Agency No. 1H328006698
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Southeast/Southwest Region), )
Agency. )
______________________________)
DECISION
Appellant filed an appeal with this Commission from a final agency
decision 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. The final agency decision was received by
appellant on June 1, 1998. The appeal was postmarked June 23, 1998.
Accordingly, the appeal is timely (see 29 C.F.R. § 1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
The appellant filed a formal complaint on April 6, 1998, alleging
that he was the victim of unlawful employment discrimination on the
basis of race (Black), color (black) and reprisal (prior EEO activity)
when he was terminated on April 15, 1997. After initially accepting
this allegation for investigation on May 4, 1998, the agency issued a
final agency decision on May 28, 1998, dismissing the complaint under
29 C.F.R. § 1614.107(b) for failure to timely contact an EEO counselor.<1>
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints
of discrimination should be brought to the attention of the Equal
Employment Opportunity Counselor within forty-five (45) days of the
date of the matter alleged to be discriminatory or, in the case of a
personnel action, within forty-five (45) days of the effective date
of the action. The Commission has adopted a "reasonable suspicion"
standard (as opposed to a "supportive facts" standard) to determine
when the forty-five (45) day limitation period is triggered. See Ball
v. United States Postal Service, EEOC Request No. 05880247 (July 6, 1988).
Thus, 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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission. 29 C.F.R. § 1614.105(a)(2).
In the instant case, a review of the EEO Counselor's Inquiry report
provided by the agency reveals that appellant initiated contact with an
EEO counselor on March 17, 1998, significantly more than 45 days after
the alleged discriminatory termination of April 15, 1997.
On appeal, appellant alleges that he contacted the EEO counselor assigned
to the Orlando Processing and Distribution Center of Florida on or
about April 16, 1997 and informed that counselor that he believed his
termination was the result of discrimination. The appellant also alleges
that on April 17, 1997 he was issued an EEO informal complaint number
(1-H-328-0026-97), but that he received no other information concerning
his rights or any actions required of him to further his EEO claim and as
a result assumed that his claim was being handled by the EEO office<2>.
Appellant argues that his complaint should therefore not be dismissed
for failure to timely contact an EEO counselor, but should be remanded
for further review and investigation.
The agency did not address this allegation on appeal. However, even
assuming that appellant did initially contact an EEO counselor on or
about April 16, 1997, Commission precedent holds that for purposes of
tolling the time limit, the appellant must intend by initiating contact
to pursue EEO counseling. Snyder v. Department of Defense, EEOC Request
No. 0501061 (November 1, 1990). Here, on April 17, 1997, rather than
pursue counseling, appellant filed a union grievance in an effort to
reverse the termination. His grievance was denied by letter dated May
23, 1997.<3> He did not actively pursue counseling until March 18, 1998,
almost a year after the allegedly discriminatory event and more than 7
months after he failed to achieve success via the grievance process.<4>
Appellant offers no excuse for this passivity other than claiming it
was the EEO counselor's fiduciary duty to communicate with him.<5>
Appellant's contention that he initially contacted an EEO counselor
around April 16, 1997 and then assumed his claim was being handled
is insufficient to justify an extension of the applicable time limit
for this length of time. See Baldwin County Welcome Center v. Brown,
466 U.S. 147, 151 (1984) (per curiam) ("One who fails to act diligently
cannot invoke equitable principles to excuse lack of diligence"); Rys
v. United States Postal Service, 886 F.2d 443, 446 (1st Cir. 1989) ("to
find succor in equity a Title VII plaintiff must have diligently pursued
her claim"). Furthermore, appellant's use of the negotiated grievance
process does not toll the time limits for initiating EEO counseling.
Schermerhorn v. United States Postal Service, EEOC Request No. 05940729
(February 10, 1995).
Accordingly, the agency's decision to dismiss appellant's complaint for
failure to timely initiate EEO counseling is AFFIRMED.
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.
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.F.R.).
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:
Sept. 2, 1999
DATE
Carlton
M.
Hadden,
Acting
Director
Office
of
Federal
Operations
1 The final agency decision cites to 29 C.F.R. § 1614.105(a)(1) which
contains the applicable time limit as the basis for the dismissal, as
opposed to 29 C.F.R. § 1614.107(b) which requires dismissal of complaints
that do not comply with applicable time limits.
2 At this time, appellant also filed a grievance regarding his termination
and alleges that he should have received a letter from the EEO when the
grievance procedure was over, citing to the booklet entitled What You
Need to Know About EEO and the rule regarding deferring an EEO complaint
once a grievance is filed. This argument is misplaced in that appellant
had not yet filed a formal complaint when he filed his grievance.
3 On appeal, appellant notes that the grievance process continued
through July 1997, due to his appeal of the decision.
4 This 7 month time period is based on the acceptance of appellant's
allegation that the appeal of his grievance continued through July 1997.
5 There is Commission precedent excusing untimely contact with an
EEO counselor when an appellant had contacted an EEO Office, but then
chose to pursue the matter at issue through the grievance process and
did not actively pursue counseling until after his grievance was denied
(significantly more than 45 days after the alleged discriminatory event).
However, this line of cases involves situations wherein an EEO counselor
actively discouraged the complainant from continuing with the EEO
process. See Arino v. Social Security Administration, EEOC Request
No. 05950541 (June 13, 1996) and cases citing to it. The instant case
does not fit within this rubric, as appellant does not claim that the
EEO Office discouraged him from continuing with the EEO process.
| [
"Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6, 1988)",
"Snyder v. Department of Defense, EEOC Request No. 0501061 (November 1, 1990)",
"Schermerhorn v. United States Postal Service, EEOC Request No. 05940729 (February 10, 1995)",
"Arino v. Social Security Administration, EEOC Reques... | [
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0.06490958482027054,
0.05948088690638542,
0.009275379590690136,
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289 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01985225.txt | 01985225.txt | TXT | text/plain | 12,611 | June 1, 1998 | Appeal Number: 01985225
Case Facts:
Appellant filed an appeal with this Commission from a final agency
decision 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. The final agency decision was received by
appellant on June 1, 1998. The appeal was postmarked June 23, 1998.
Accordingly, the appeal is timely (see 29 C.F.R. § 1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
The appellant filed a formal complaint on April 6, 1998, alleging
that he was the victim of unlawful employment discrimination on the
basis of race (Black), color (black) and reprisal (prior EEO activity)
when he was terminated on April 15, 1997. After initially accepting
this allegation for investigation on May 4, 1998, the agency issued a
final agency decision on May 28, 1998, dismissing the complaint under
29 C.F.R. § 1614.107(b) for failure to timely contact an EEO counselor.<1>
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints
of discrimination should be brought to the attention of the Equal
Employment Opportunity Counselor within forty-five (45) days of the
date of the matter alleged to be discriminatory or, in the case of a
personnel action, within forty-five (45) days of the effective date
of the action. The Commission has adopted a "reasonable suspicion"
standard (as opposed to a "supportive facts" standard) to determine
when the forty-five (45) day limitation period is triggered. See Ball
v. United States Postal Service, EEOC Request No. 05880247 (July 6, 1988).
Thus, 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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission. 29 C.F.R. § 1614.105(a)(2).
In the instant case, a review of the EEO Counselor's Inquiry report
provided by the agency reveals that appellant initiated contact with an
EEO counselor on March 17, 1998, significantly more than 45 days after
the alleged discriminatory termination of April 15, 1997.
On appeal, appellant alleges that he contacted the EEO counselor assigned
to the Orlando Processing and Distribution Center of Florida on or
about April 16, 1997 and informed that counselor that he believed his
termination was the result of discrimination. The appellant also alleges
that on April 17, 1997 he was issued an EEO informal complaint number
(1-H-328-0026-97), but that he received no other information concerning
his rights or any actions required of him to further his EEO claim and as
a result assumed that his claim was being handled by the EEO office<2>.
Appellant argues that his complaint should therefore not be dismissed
for failure to timely contact an EEO counselor, but should be remanded
for further review and investigation.
The agency did not address this allegation on appeal. However, even
assuming that appellant did initially contact an EEO counselor on or
about April 16, 1997, Commission precedent holds that for purposes of
tolling the time limit, the appellant must intend by initiating contact
to pursue EEO counseling. Snyder v. Department of Defense, EEOC Request
No. 0501061 (November 1, 1990). Here, on April 17, 1997, rather than
pursue counseling, appellant filed a union grievance in an effort to
reverse the termination. His grievance was denied by letter dated May
23, 1997.<3> He did not actively pursue counseling until March 18, 1998,
almost a year after the allegedly discriminatory event and more than 7
months after he failed to achieve success via the grievance process.<4>
Appellant offers no excuse for this passivity other than claiming it
was the EEO counselor's fiduciary duty to communicate with him.<5>
Appellant's contention that he initially contacted an EEO counselor
around April 16, 1997 and then assumed his claim was being handled
is insufficient to justify an extension of the applicable time limit
for this length of time. See Baldwin County Welcome Center v. Brown,
466 U.S. 147, 151 (1984) (per curiam) ("One who fails to act diligently
cannot invoke equitable principles to excuse lack of diligence"); Rys
v. United States Postal Service, 886 F.2d 443, 446 (1st Cir. 1989) ("to
find succor in equity a Title VII plaintiff must have diligently pursued
her claim"). Furthermore, appellant's use of the negotiated grievance
process does not toll the time limits for initiating EEO counseling.
Schermerhorn v. United States Postal Service, EEOC Request No. 05940729
(February 10, 1995).
Final Decision:
Accordingly, the appeal is timely (see 29 C.F.R. § 1614.402(a)), and is accepted in accordance with EEOC Order No. 960, as amended. The appellant filed a formal complaint on April 6, 1998, alleging that he was the victim of unlawful employment discrimination on the basis of race (Black), color (black) and reprisal (prior EEO activity) when he was terminated on April 15, 1997. After initially accepting this allegation for investigation on May 4, 1998, the agency issued a final agency decision on May 28, 1998, dismissing the complaint under 29 C.F.R. § 1614.107(b) for failure to timely contact an EEO counselor.<1> EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6, 1988). Thus, 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. EEOC Regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. 29 C.F.R. § 1614.105(a)(2). In the instant case, a review of the EEO Counselor's Inquiry report provided by the agency reveals that appellant initiated contact with an EEO counselor on March 17, 1998, significantly more than 45 days after the alleged discriminatory termination of April 15, 1997. On appeal, appellant alleges that he contacted the EEO counselor assigned to the Orlando Processing and Distribution Center of Florida on or about April 16, 1997 and informed that counselor that he believed his termination was the result of discrimination. The appellant also alleges that on April 17, 1997 he was issued an EEO informal complaint number (1-H-328-0026-97), but that he received no other information concerning his rights or any actions required of him to further his EEO claim and as a result assumed that his claim was being handled by the EEO office<2>. Appellant argues that his complaint should therefore not be dismissed for failure to timely contact an EEO counselor, but should be remanded for further review and investigation. The agency did not address this allegation on appeal. However, even assuming that appellant did initially contact an EEO counselor on or about April 16, 1997, Commission precedent holds that for purposes of tolling the time limit, the appellant must intend by initiating contact to pursue EEO counseling. Snyder v. Department of Defense, EEOC Request No. 0501061 (November 1, 1990). Here, on April 17, 1997, rather than pursue counseling, appellant filed a union grievance in an effort to reverse the termination. His grievance was denied by letter dated May 23, 1997.<3> He did not actively pursue counseling until March 18, 1998, almost a year after the allegedly discriminatory event and more than 7 months after he failed to achieve success via the grievance process.<4> Appellant offers no excuse for this passivity other than claiming it was the EEO counselor's fiduciary duty to communicate with him.<5> Appellant's contention that he initially contacted an EEO counselor around April 16, 1997 and then assumed his claim was being handled is insufficient to justify an extension of the applicable time limit for this length of time. See Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151 (1984) (per curiam) ("One who fails to act diligently cannot invoke equitable principles to excuse lack of diligence"); Rys v. United States Postal Service, 886 F.2d 443, 446 (1st Cir. 1989) ("to find succor in equity a Title VII plaintiff must have diligently pursued her claim"). Furthermore, appellant's use of the negotiated grievance process does not toll the time limits for initiating EEO counseling. Schermerhorn v. United States Postal Service, EEOC Request No. 05940729 (February 10, 1995). Accordingly, the agency's decision to dismiss appellant's complaint for failure to timely initiate EEO counseling is AFFIRMED. | Raymon L. Crook, )
Appellant, )
)
v. ) Appeal No. 01985225
) Agency No. 1H328006698
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Southeast/Southwest Region), )
Agency. )
______________________________)
DECISION
Appellant filed an appeal with this Commission from a final agency
decision 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. The final agency decision was received by
appellant on June 1, 1998. The appeal was postmarked June 23, 1998.
Accordingly, the appeal is timely (see 29 C.F.R. § 1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
The appellant filed a formal complaint on April 6, 1998, alleging
that he was the victim of unlawful employment discrimination on the
basis of race (Black), color (black) and reprisal (prior EEO activity)
when he was terminated on April 15, 1997. After initially accepting
this allegation for investigation on May 4, 1998, the agency issued a
final agency decision on May 28, 1998, dismissing the complaint under
29 C.F.R. § 1614.107(b) for failure to timely contact an EEO counselor.<1>
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints
of discrimination should be brought to the attention of the Equal
Employment Opportunity Counselor within forty-five (45) days of the
date of the matter alleged to be discriminatory or, in the case of a
personnel action, within forty-five (45) days of the effective date
of the action. The Commission has adopted a "reasonable suspicion"
standard (as opposed to a "supportive facts" standard) to determine
when the forty-five (45) day limitation period is triggered. See Ball
v. United States Postal Service, EEOC Request No. 05880247 (July 6, 1988).
Thus, 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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission. 29 C.F.R. § 1614.105(a)(2).
In the instant case, a review of the EEO Counselor's Inquiry report
provided by the agency reveals that appellant initiated contact with an
EEO counselor on March 17, 1998, significantly more than 45 days after
the alleged discriminatory termination of April 15, 1997.
On appeal, appellant alleges that he contacted the EEO counselor assigned
to the Orlando Processing and Distribution Center of Florida on or
about April 16, 1997 and informed that counselor that he believed his
termination was the result of discrimination. The appellant also alleges
that on April 17, 1997 he was issued an EEO informal complaint number
(1-H-328-0026-97), but that he received no other information concerning
his rights or any actions required of him to further his EEO claim and as
a result assumed that his claim was being handled by the EEO office<2>.
Appellant argues that his complaint should therefore not be dismissed
for failure to timely contact an EEO counselor, but should be remanded
for further review and investigation.
The agency did not address this allegation on appeal. However, even
assuming that appellant did initially contact an EEO counselor on or
about April 16, 1997, Commission precedent holds that for purposes of
tolling the time limit, the appellant must intend by initiating contact
to pursue EEO counseling. Snyder v. Department of Defense, EEOC Request
No. 0501061 (November 1, 1990). Here, on April 17, 1997, rather than
pursue counseling, appellant filed a union grievance in an effort to
reverse the termination. His grievance was denied by letter dated May
23, 1997.<3> He did not actively pursue counseling until March 18, 1998,
almost a year after the allegedly discriminatory event and more than 7
months after he failed to achieve success via the grievance process.<4>
Appellant offers no excuse for this passivity other than claiming it
was the EEO counselor's fiduciary duty to communicate with him.<5>
Appellant's contention that he initially contacted an EEO counselor
around April 16, 1997 and then assumed his claim was being handled
is insufficient to justify an extension of the applicable time limit
for this length of time. See Baldwin County Welcome Center v. Brown,
466 U.S. 147, 151 (1984) (per curiam) ("One who fails to act diligently
cannot invoke equitable principles to excuse lack of diligence"); Rys
v. United States Postal Service, 886 F.2d 443, 446 (1st Cir. 1989) ("to
find succor in equity a Title VII plaintiff must have diligently pursued
her claim"). Furthermore, appellant's use of the negotiated grievance
process does not toll the time limits for initiating EEO counseling.
Schermerhorn v. United States Postal Service, EEOC Request No. 05940729
(February 10, 1995).
Accordingly, the agency's decision to dismiss appellant's complaint for
failure to timely initiate EEO counseling is AFFIRMED.
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.
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.F.R.).
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:
July 30, 1999
DATE
Carlton
M.
Hadden,
Acting
Director
Office
of
Federal
Operations
1 The final agency decision cites to 29 C.F.R. § 1614.105(a)(1) which
contains the applicable time limit as the basis for the dismissal, as
opposed to 29 C.F.R. § 1614.107(b) which requires dismissal of complaints
that do not comply with applicable time limits.
2 At this time, appellant also filed a grievance regarding his termination
and alleges that he should have received a letter from the EEO when the
grievance procedure was over, citing to the booklet entitled What You
Need to Know About EEO and the rule regarding deferring an EEO complaint
once a grievance is filed. This argument is misplaced in that appellant
had not yet filed a formal complaint when he filed his grievance.
3 On appeal, appellant notes that the grievance process continued
through July 1997, due to his appeal of the decision.
4 This 7 month time period is based on the acceptance of appellant's
allegation that the appeal of his grievance continued through July 1997.
5 There is Commission precedent excusing untimely contact with an
EEO counselor when an appellant had contacted an EEO Office, but then
chose to pursue the matter at issue through the grievance process and
did not actively pursue counseling until after his grievance was denied
(significantly more than 45 days after the alleged discriminatory event).
However, this line of cases involves situations wherein an EEO counselor
actively discouraged the complainant from continuing with the EEO
process. See Arino v. Social Security Administration, EEOC Request
No. 05950541 (June 13, 1996) and cases citing to it. The instant case
does not fit within this rubric, as appellant does not claim that the
EEO Office discouraged him from continuing with the EEO process.
| [
"Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6, 1988)",
"Snyder v. Department of Defense, EEOC Request No. 0501061 (November 1, 1990)",
"Schermerhorn v. United States Postal Service, EEOC Request No. 05940729 (February 10, 1995)",
"Arino v. Social Security Administration, EEOC Reques... | [
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