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290 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01982976.txt | 01982976.txt | TXT | text/plain | 13,084 | April 13, 1999 | Appeal Number: 01982976
Case Facts:
Appellant filed the instant appeal from the agency's January 30, 1998
decision dismissing a portion of appellant's complaint (allegation A)
for failing to state a claim and the remainder of appellant's complaint
(allegations B - H) for failure to timely contact an EEO Counselor.
Allegation A
The agency dismissed allegation A (Person A requested, by memorandum
dated May 29, 1997, authorization to restore appellant's leave balance
to a particular level) for failing to state a claim. Appellant has
not claimed that the request at issue was approved in whole or in part.
The Commission finds that appellant was not aggrieved by the incident
in allegation A and that allegation A was properly dismissed pursuant
to 29 C.F.R. §1614.107(a).
Allegations B - H
Allegations B - H concern incidents involving appellant's leave and
insurance occurring from July 11, 1995 to, most recently, November 1996.
Legal Analysis:
The Commission finds that appellant was not aggrieved by the incident
in allegation A and that allegation A was properly dismissed pursuant
to 29 C.F.R. §1614.107(a).
Allegations B - H
Allegations B - H concern incidents involving appellant's leave and
insurance occurring from July 11, 1995 to, most recently, November 1996.
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 45 day time limit shall be extended when the
individual shows that he was not notified of the time limits and was
not otherwise aware of them or that he did not know and reasonably
should not have known that the discriminatory matter occurred.
29 C.F.R. §1614.105(a)(2). The agency found, and appellant admits, that
appellant initially requested EEO counseling regarding allegations B -
H on June 6, 1997.
Appellant argues that she was unaware of the time limits for contacting an
EEO Counselor until June 4, 1997 which is less than 45 days prior to her
initial contact of an EEO Counselor. It is the Commission's policy that
constructive knowledge will be imputed to an employee when an employer
has fulfilled its obligations under Title VII. Thompson v. Department
of the Army, EEOC Request No. 05910474 (Sept. 12, 1991) (citing
Kale v. Combined Ins. 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 Serv.,
EEOC Request No. 05930134 (Aug. 19, 1993) (citing Polsby v. Shalala, 113
S. Ct. 1940 (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 the instant matter the agency claims in the final decision and on
appeal that directives about the EEO process had been sent to appellant's
home address, posters regarding the EEO process (including time limits
for contacting an EEO Counselor) were posted, and the EEO process was
available through the agency computer network. The agency, however,
has failed to produce any evidence showing that appellant had actual or
constructive notice of the time limit for contacting an EEO Counselor.
The agency has not supplied a copy of any EEO poster(s) or an affidavit
describing the location of the poster(s) during the relevant time period.
The agency has not produced any evidence showing that appellant was sent
and/or received directives regarding the EEO process. The agency has
not supplied a copy for the record of any of the directives. The agency
has not supplied any copies of information available on the agency's
computer network. Therefore, we can not find that appellant had actual or
constructive notice of the time limits for contacting an EEO Counselor.
The Commission shall remand allegations B - H to the agency so that it
may supplement the record with evidence showing whether appellant had
actual or constructive notice of the time limit for contacting an EEO
Counselor more than 45 days before she contacted an EEO Counselor.
On appeal the agency argues that allegations B - H should be dismissed for
failing to state a claim. This grounds for dismissal was not asserted by
the agency in the final decision and appellant has not had an opportunity
to rebut this grounds for dismissal. The Commission declines to consider
in the instant decision whether allegations B - H fail to state a claim.
If, on remand, the agency wishes to dismiss allegations B - H for failing
to state a claim, then it should reissue such a decision so that appellant
will have the opportunity to contest such a grounds for dismissal.
The agency's decision dismissing allegation A is AFFIRMED. The agency's
decision dismissing allegations B - H is VACATED and we REMAND allegations
B - H to the agency for further processing in accordance with this
decision and applicable regulations.
ORDER
The agency shall investigate the issue of whether appellant had actual
or constructive knowledge of the time limit for contacting an EEO
Counselor more than 45 days before she contacted an EEO Counselor.
The agency shall supplement the record with copies of the EEO posters
(or affidavits describing the posters if the posters are unavailable)
and any other evidence showing that appellant was informed, or should
have known, of the time limits for contacting an EEO Counselor.
The agency shall redetermine whether appellant timely contacted an EEO
Counselor. Within 60 days of the date this decision becomes final the
agency shall either issue a letter to appellant accepting allegations B
- H for investigation or issue a new decision dismissing allegations B
- H. A copy of the letter accepting allegations B - H or new decision
dismissing allegations B - H 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. | Teresa A. Scott v. Federal Deposit Insurance
01982976
April 13, 1999
Teresa A. Scott, )
Appellant, )
)
v. ) Appeal No. 01982976
) Agency No. FDIC-97-101
Donna A. Tanoue, )
Chairman, )
Federal Deposit Insurance )
Corporation, )
Agency. )
)
DECISION
Appellant filed the instant appeal from the agency's January 30, 1998
decision dismissing a portion of appellant's complaint (allegation A)
for failing to state a claim and the remainder of appellant's complaint
(allegations B - H) for failure to timely contact an EEO Counselor.
Allegation A
The agency dismissed allegation A (Person A requested, by memorandum
dated May 29, 1997, authorization to restore appellant's leave balance
to a particular level) for failing to state a claim. Appellant has
not claimed that the request at issue was approved in whole or in part.
The Commission finds that appellant was not aggrieved by the incident
in allegation A and that allegation A was properly dismissed pursuant
to 29 C.F.R. §1614.107(a).
Allegations B - H
Allegations B - H concern incidents involving appellant's leave and
insurance occurring from July 11, 1995 to, most recently, November 1996.
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 45 day time limit shall be extended when the
individual shows that he was not notified of the time limits and was
not otherwise aware of them or that he did not know and reasonably
should not have known that the discriminatory matter occurred.
29 C.F.R. §1614.105(a)(2). The agency found, and appellant admits, that
appellant initially requested EEO counseling regarding allegations B -
H on June 6, 1997.
Appellant argues that she was unaware of the time limits for contacting an
EEO Counselor until June 4, 1997 which is less than 45 days prior to her
initial contact of an EEO Counselor. It is the Commission's policy that
constructive knowledge will be imputed to an employee when an employer
has fulfilled its obligations under Title VII. Thompson v. Department
of the Army, EEOC Request No. 05910474 (Sept. 12, 1991) (citing
Kale v. Combined Ins. 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 Serv.,
EEOC Request No. 05930134 (Aug. 19, 1993) (citing Polsby v. Shalala, 113
S. Ct. 1940 (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 the instant matter the agency claims in the final decision and on
appeal that directives about the EEO process had been sent to appellant's
home address, posters regarding the EEO process (including time limits
for contacting an EEO Counselor) were posted, and the EEO process was
available through the agency computer network. The agency, however,
has failed to produce any evidence showing that appellant had actual or
constructive notice of the time limit for contacting an EEO Counselor.
The agency has not supplied a copy of any EEO poster(s) or an affidavit
describing the location of the poster(s) during the relevant time period.
The agency has not produced any evidence showing that appellant was sent
and/or received directives regarding the EEO process. The agency has
not supplied a copy for the record of any of the directives. The agency
has not supplied any copies of information available on the agency's
computer network. Therefore, we can not find that appellant had actual or
constructive notice of the time limits for contacting an EEO Counselor.
The Commission shall remand allegations B - H to the agency so that it
may supplement the record with evidence showing whether appellant had
actual or constructive notice of the time limit for contacting an EEO
Counselor more than 45 days before she contacted an EEO Counselor.
On appeal the agency argues that allegations B - H should be dismissed for
failing to state a claim. This grounds for dismissal was not asserted by
the agency in the final decision and appellant has not had an opportunity
to rebut this grounds for dismissal. The Commission declines to consider
in the instant decision whether allegations B - H fail to state a claim.
If, on remand, the agency wishes to dismiss allegations B - H for failing
to state a claim, then it should reissue such a decision so that appellant
will have the opportunity to contest such a grounds for dismissal.
The agency's decision dismissing allegation A is AFFIRMED. The agency's
decision dismissing allegations B - H is VACATED and we REMAND allegations
B - H to the agency for further processing in accordance with this
decision and applicable regulations.
ORDER
The agency shall investigate the issue of whether appellant had actual
or constructive knowledge of the time limit for contacting an EEO
Counselor more than 45 days before she contacted an EEO Counselor.
The agency shall supplement the record with copies of the EEO posters
(or affidavits describing the posters if the posters are unavailable)
and any other evidence showing that appellant was informed, or should
have known, of the time limits for contacting an EEO Counselor.
The agency shall redetermine whether appellant timely contacted an EEO
Counselor. Within 60 days of the date this decision becomes final the
agency shall either issue a letter to appellant accepting allegations B
- H for investigation or issue a new decision dismissing allegations B
- H. A copy of the letter accepting allegations B - H or new decision
dismissing allegations B - H 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 (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:
April 13, 1999 Ronnie Blumenthal
DATE Director
Office of Federal Operations | [
"Title VII. Thompson v. Department of the Army, EEOC Request No. 05910474 (Sept. 12, 1991)",
"Pride v. United States Postal Serv., EEOC Request No. 05930134 (Aug. 19, 1993)",
"861 F.2d 746"
] | [
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0.025747178122401237,
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0.039503101259469986,
0.11720462888479233,
0.08489851653575897,
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0.09203079342842102,
0.062356531620025635,
-0.004970255307853222,
-0.021386954933404922,
-0.01... | |
291 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A14212_r.txt | 01A14212_r.txt | TXT | text/plain | 12,423 | Wylene Dinkins v. Department of Health and Human Services 01A14212 January 6, 2003 . Wylene Dinkins, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency. | January 6, 2003 | Appeal Number: 01A14212
Legal Analysis:
The Commission finds that the agency inappropriately addressed the
merits of the portion of claim (4) which it dismissed for failure to
state a claim. The Commission finds that the agency's dismissal of
some of complainant's claims for failure to contact an EEO Counselor
in a timely manner and others for failure to state a claim, improperly
fragmented her complaint. We determine that complainant has set forth a
cognizable claim of a hostile work environment. We find that the agency
improperly treated the complaint in a piecemeal fashion. | Wylene Dinkins v. Department of Health and Human Services
01A14212
January 6, 2003
.
Wylene Dinkins,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01A14212
Agency No. CDC-NCCDPHP-020-2001
DECISION
According to the agency, complainant initiated contact with an EEO
Counselor on March 16, 2001. On April 23, 2001, complainant filed
a formal EEO complaint wherein she claimed that she was discriminated
against on the bases of her race (Black) and in reprisal for her previous
EEO activity under Title VII. The agency defined complainant's claims
as follows:
1. On March 23, 2001, a coworker refused to provide her with information
necessary to perform her assigned duties.
2. She was harassed over her time and attendance from April 10, 2000,
to June 1, 2000.
3. She was retaliated against when she returned to her permanent position
from her detail to the Office of Equal Employment Opportunity on January
2, 2001.
4. She was denied and excluded from access to training, meetings,
conferences, on the job training, travel, various projects, and mentoring
from February 1999 to the present.
5. She has been subjected to a hostile working environment since
February 1999.
By decision dated May 22, 2001, the agency dismissed claim (1) on
the grounds of failure to state a claim. The agency determined that
complainant had not suffered any direct harm with regard to a term,
condition, or privilege of her employment. The agency dismissed claims
(2), (3), and (5) on the grounds that complainant failed to initiate
contact with an EEO Counselor in a timely manner. According to the
agency, complainant initially contacted the EEO Office in June 2000, but
she withdrew from the informal processing on July 18, 2000. The agency
determined that the most recent event cited by complainant occurred on
January 2, 2001, which was more than 45 days before complainant's EEO
contact on March 16, 2001.
The agency dismissed the portion of claim (4) relating to a denial of
training that occurred less than six months before complainant's EEO
contact on March 16, 2001, for failure to state a claim. The agency
determined that pursuant to her request, complainant was placed on two
separate details which constituted training opportunities during the
relevant six month period. The agency stated that complainant failed to
identify any training for which she applied and was denied. The agency
dismissed the remainder of claim (4) for untimely EEO Counselor contact.
On appeal, complainant maintains that the incident referenced in
claim (1) constituted harassment and that it is just the culmination
of the litany of events that have transpired during her employment
with the agency. Complainant cites two previous occasions where she
was not provided with the necessary materials to complete her job
assignment. Complainant argues that this treatment has caused her to
receive unfavorable evaluations, a lack of promotional opportunities,
and harassment concerning untimely completion of her job assignments.
As for claim (2), complainant argues with regard to her June 2000 EEO
contact that she was informed by the EEO Counselor that she did not
have a case and that she should contact the union to file a grievance.
Complainant claims that she was misled by the EEO Counselor and that
she did not discontinue her pursuit of the EEO claim that she initiated
in June 2000. With regard to claim (3), complainant states that on
November 29, 2000, she was notified that her detail to the Office of
Equal Employment Opportunity (OEEO) would be terminated due to budgetary
constraints. Complainant states that she later learned that her detail
did not place a strain on the OEEO budget since her former office was
carrying her as their full-time employee. Complainant notes that she
notified the EEO Director on December 6, 2000, that she wished to pursue
her EEO claims. With respect to claim (4), complainant maintains that
on several occasions her requests for additional training, mentoring,
and promotions have been denied. As for claim (5), complainant states
that the most recent incident cited in her complaint occurred on March
23, 2001, and therefore this claim is timely.
The Commission finds that the agency inappropriately addressed the
merits of the portion of claim (4) which it dismissed for failure to
state a claim. The Commission finds that the agency's dismissal of
some of complainant's claims for failure to contact an EEO Counselor
in a timely manner and others for failure to state a claim, improperly
fragmented her complaint. We determine that complainant has set forth a
cognizable claim of a hostile work environment. We find that the agency
improperly treated the complaint in a piecemeal fashion. Accordingly,
the agency's dismissal of a portion of the complaint on the grounds of
failure to state a claim was improper.
With regard to the question of whether complainant's EEO contact was
timely, we observe that complainant maintains that she was advised
by the EEO Counselor subsequent to her EEO contact of June 14, 2000,
that she did not have a case and that she should contact the Union and
file a grievance. The record does not contain a statement from the EEO
Counselor concerning this issue. We are unable to make a finding as to
whether complainant's EEO contact was timely based on the present record.
Therefore, it is necessary that additional evidence be obtained in this
matter regarding whether complainant was improperly advised regarding
her right to pursue EEO counseling. Furthermore, it is not clear from
the record when all of the incidents at issue occurred. Therefore,
on remand the agency shall contact complainant to clarify the dates of
the incidents at issue.
Accordingly, the agency's decision is VACATED and this complaint is
REMANDED for further processing pursuant to the Order below.
ORDER
The agency shall obtain from the EEO Counselor that handled the matter
raised by complainant on June 14, 2000, a statement as to whether she
advised complainant not to pursue the EEO process or otherwise made any
comments to complainant about the merits of her complaint. The agency
shall obtain from complainant a specific listing and date of each incident
at issue where she claims that she was denied and/or excluded from access
to training, meetings, conferences, travel, projects, and mentoring.
Within 60 days of the date this decision becomes final, the agency
shall either issue a letter to complainant accepting the complaint for
investigation or issue a new decision dismissing the complaint. A copy
of the agency's letter accepting the complaint for investigation 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 (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
January 6, 2003
__________________
Date
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292 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a51825.txt | 01a51825.txt | TXT | text/plain | 30,553 | 05 . John P. Kalinich, et al. Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency. | July 1, 2000 | Appeal Number: 01A51825
Background:
Prior to July 1, 2000, the complainants were employed by the agency's
Logistics Systems Support Center (LSSC), located in St. Louis, Missouri.
The LSSC was a component of the agency's Communications Electronics
Command (CECOM). In 1999, CECOM began the process of outsourcing the
work performed by the LSSC to a private contractor, the Computer Science
Corporation (CSC). Because of the decision to privatize, the complainants
were notified that a reduction-in-force (RIF) would be implemented.
In order to minimize the impact of the RIF, the agency devised what became
know as the Soft Landing program to assist affected employees. As part
of the program, employees who were involuntarily separated under the RIF
procedures were entitled, among other things, to a guaranteed job offer
from the CSC with pay and benefits that were comparable to the Federal
government. Management conducted a survey of the workforce, asking
employees to identify whether they would prefer to: (a) remain with the
Federal Government, either in the Retained Government Organization (RGO)
with the CSC or to transfer to another Federal agency, (b) volunteer for
the RIF and take a position with the CSC, or (c) retire. According to
the agency, approximately 51% of the employees indicated that accepting a
position with the CSC was their first choice. Approximately 25% wanted
to remain with the Federal government, with the balance indicating a
preference for accepting voluntary retirement with a separation incentive.
Based on seniority, the majority of employees received their first choice.
On May 24, 1999, Conrad Lohutko, an employee, contacted the EEO office.
Subsequently, he filed a class complaint against the agency that
alleged, among other things, discrimination based on age with respect
to the abolishment of the complainants' jobs. In support of the class
complaint, 80 statements were submitted by the purported class members.
On July 1, 2000, the LSSC ceased operation. On November 13, 2001, an
EEOC Administrative Judge (AJ) issued a decision rejecting the class
complaint for certification. The AJ found that the requirement of
adequacy of representation had not been satisfied. On appeal, in Lohutko
v. Department of the Army, EEOC Appeal No. 01A22022 (November 14, 2003),
the Commission affirmed the AJ's decision. In EEOC Request No. 05A40278
(December 30, 2003), Mr. Lohutko's request to have the initial decision
reconsidered was denied.
On January 27, 2004, an EEO official from CENCOM (the EEO official)
informed the complainants, by memorandum, that the AJ had denied
certification of the class action and that the appeal of that decision had
been denied. The EEO official also indicated that EEO representatives
would come to the LSSC to meet with the affected employees in order to
discuss their rights and responsibilities and how to proceed if there
was a desire to proceed with individual complaints. At the meeting,
which was held on February 10, 2004, EEO representatives held a briefing
for many of the complainants and collected numerous informal individual
complaints.<3>
In May 2004, the complainants filed formal complaints of discrimination
against the agency. For the most part, the complainants alleged that
they were discriminated against based on age when management made a
Legal Analysis:
The Commission may, in its
discretion, consolidate complaints filed by two or more complainants
consisting of substantially similar claims or relating to the same matter.
See 29 C.F.R. § 1614.606.
Final Decision:
Accordingly, the Commission exercises its discretion to consolidate the cases herein. For the following reasons, the Commission REVERSES forty-three (43) of the agency's final orders.<1> We will, however, AFFIRM seven (7) of the agency's final orders.<2> ISSUES PRESENTED Whether the agency properly dismissed fifty (50) complaints on the grounds that: (1) the complainants contacted EEO counselors in an untimely manner, (2) the allegations of the complainants failed to state a claim; and (3) the allegations of the complainants' represent a collateral attack on another forum's proceeding. BACKGROUND Prior to July 1, 2000, the complainants were employed by the agency's Logistics Systems Support Center (LSSC), located in St. Louis, Missouri. The LSSC was a component of the agency's Communications Electronics Command (CECOM). In 1999, CECOM began the process of outsourcing the work performed by the LSSC to a private contractor, the Computer Science Corporation (CSC). Because of the decision to privatize, the complainants were notified that a reduction-in-force (RIF) would be implemented. In order to minimize the impact of the RIF, the agency devised what became know as the Soft Landing program to assist affected employees. As part of the program, employees who were involuntarily separated under the RIF procedures were entitled, among other things, to a guaranteed job offer from the CSC with pay and benefits that were comparable to the Federal government. Management conducted a survey of the workforce, asking employees to identify whether they would prefer to: (a) remain with the Federal Government, either in the Retained Government Organization (RGO) with the CSC or to transfer to another Federal agency, (b) volunteer for the RIF and take a position with the CSC, or (c) retire. According to the agency, approximately 51% of the employees indicated that accepting a position with the CSC was their first choice. Approximately 25% wanted to remain with the Federal government, with the balance indicating a preference for accepting voluntary retirement with a separation incentive. Based on seniority, the majority of employees received their first choice. On May 24, 1999, Conrad Lohutko, an employee, contacted the EEO office. Subsequently, he filed a class complaint against the agency that alleged, among other things, discrimination based on age with respect to the abolishment of the complainants' jobs. In support of the class complaint, 80 statements were submitted by the purported class members. On July 1, 2000, the LSSC ceased operation. On November 13, 2001, an EEOC Administrative Judge (AJ) issued a decision rejecting the class complaint for certification. The AJ found that the requirement of adequacy of representation had not been satisfied. On appeal, in Lohutko v. Department of the Army, EEOC Appeal No. 01A22022 (November 14, 2003), the Commission affirmed the AJ's decision. In EEOC Request No. 05A40278 (December 30, 2003), Mr. Lohutko's request to have the initial decision reconsidered was denied. On January 27, 2004, an EEO official from CENCOM (the EEO official) informed the complainants, by memorandum, that the AJ had denied certification of the class action and that the appeal of that decision had been denied. The EEO official also indicated that EEO representatives would come to the LSSC to meet with the affected employees in order to discuss their rights and responsibilities and how to proceed if there was a desire to proceed with individual complaints. At the meeting, which was held on February 10, 2004, EEO representatives held a briefing for many of the complainants and collected numerous informal individual complaints.<3> In May 2004, the complainants filed formal complaints of discrimination against the agency. For the most part, the complainants alleged that they were discriminated against based on age when management made a decision to abolish the positions of its older workers and to replace them with younger employees. On November 17, 2004, the agency issued a final order that dismissed the complainants' complaints on the grounds that (1) the complainants sought EEO counseling in an untimely manner; (2) the complainants' allegations failed to state a claim; and (3) the complainants were attempting to collaterally attack the process by which the LSSC was privatized. These appeals followed.<4> ANALYSIS AND FINDINGS Untimely EEO counselor contact EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides, in pertinent part, 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. 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. The agency argues that the complainants failed to contact an EEO counselor within 45 days of the alleged discriminatory events; therefore, their complaints should be dismissed on the grounds that they are untimely. We note, however, that the Commission, in Mole v. Department of the Air Force, EEOC Request No. 05910578 (September 25, 1991), held that the, Commencement of a class action . . . suspends applicable time limits to all asserted members of the class who would have been parties if the class had been certified. Moreover, the Commission held that once there was a final administrative ruling on the class certification issue, the time limits for filing individual actions by rejected class members resumes. Id. Therefore, in the present case, the 45-day time limitation period for contacting an EEO counselor was triggered, on December 31, 2003, the day after EEOC Request No. 05A40278 was issued. Accordingly, any EEO counselor contact that occurred on or before Friday, February 13, 2004, the 45th day, was timely. The agency, in its EEO counselor's reports and pre-complaint intake documents, acknowledged that forty-one (41) of the complainants contacted an EEO official in order to initiate the EEO process on or before February 13, 2004. Accordingly, we find that all 41 of these complainants contacted an EEO counselor in a timely manner. The record indicates that nine (9) complainants contacted EEO officials after February 13, 2004. Therefore, we must determine whether they presented an adequate justification for tolling the 45-day time limitation period. 29 C.F.R. § 1614.604(c). At the outset, we reject the contention raised on appeal that the 45-day time limitation period was not triggered until February 10, 2004, when the complainants' were informed of the final disposition of Mr. Lohutko's appeal. As previously noted, pursuant to long standing Commission precedent, the time limitation period resumed after the final administrative ruling on the class certification issue. Moreover, we note the Commission's decision in Davenport v. Department of Justice, EEOC Appeal No. 07A30082 (December 5, 2003). In Davenport, the Commission held that, [W]here class certification has been denied, there is no regulatory requirement that an agency notify potential class members (whether named' or not) of the dismissal of the class complaint, or of their rights to file individual complaints. We also find that the mere attendance of a complainant at the February 10, 2004 meeting would not, by itself, constitute EEO counselor contact. 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). Therefore, if a complainant attended the meeting in order to obtain information, but did not exhibit an intent to begin the EEO process until after the February 13, 2004 deadline, we would find, absent an adequate justification for tolling the time period, that their counselor contact would be untimely. Finally, the complainants maintained that, after the decision was issued on the class action appeal, that they were told that the time limit for filing individual complaints would be waived. Although the January 27, 2004 memorandum may fairly be interpreted as waiving time limits through the issuance of EEOC Request No. 05A40278, a position that is consistent with the decision herein, we find no persuasive evidence that the agency intended to waive the 45-day time limitation period for contacting an EEO counselor. With regard to Complainants Joyce Bowen, John R. Morris, Michelle Zellich and Lydia L. Lewis, the record indicates that they established EEO counselor contact on February 16, March 5, March 10, and March 23, respectively. The EEO counselor's reports and the pre-complaint intake documents of these complainants do not indicate why they did not contact an EEO counselor on or before February 13, 2004. We also find that they did not present an adequate justification for tolling the time limitation period in their appeal briefs. Accordingly, we affirm the dismissals of their complaints. With regard to Complainant Grant Stephens, the record indicates that he established EEO counselor contact on February 17, 2004. According to the EEO counselor's report, he did not learn that he could file an individual EEO complaint until the February 10 meeting. There is no indication in the record or in his appeal brief, however, regarding why he did not initiate the EEO process before February 13, as did the majority of the attendees of the February 10 meeting. Therefore, we do not find that he provided an adequate justification for tolling the time limitation period. We affirm the dismissal of his complaint. Complainants Donald R. Harris, Richard Zellich and Jamie B. Vasquez established EEO counselor contact on March 4, March 10 and March 19, respectively. A review of the EEO counselor's reports indicate that each of these individuals maintained that theey were not aware of the fact that they could file individual EEO complaints. For example, in the case of Complainant Vasquez, she indicated that she was only made aware of the fact that she could file an individual complaint on March 17, 2004, when she spoke to another employee. The record indicates that both Complainants Zellich and Vasquez retired from Federal service and, unlike Complainant Harris, did not take a position with CSC. As we indicated above, the agency was under no obligation to notify the complainants that they could file individual complaints; however, we are cognizant of the fact that Complainants Zellich and Vasquez, because they were out of the work place, did not have access to the same information provided to Complainant Harris and other employees. Accordingly, we will toll the time limitation period with regard to Complainants Zellich and Vasquez. We, however, do not find that Complainant Harris has provided an adequate justification for tolling the time limitation period. The agency's dismissal of Complainant Harris' complaint is affirmed. | John P. Kalinich, et al. v. Department of the Army
01A51825, et al.
08-25-05
.
John P. Kalinich, et al.
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A51825, et al.
Agency No. ARHQAMC04MAR0031, et al.
DECISION
INTRODUCTION
Fifty (50) former employees of the agency (complainants) timely initiated
appeals from the agency's final orders that dismissed their complaints
of unlawful employment discrimination. The Commission may, in its
discretion, consolidate complaints filed by two or more complainants
consisting of substantially similar claims or relating to the same matter.
See 29 C.F.R. § 1614.606. Accordingly, the Commission exercises its
discretion to consolidate the cases herein. For the following reasons,
the Commission REVERSES forty-three (43) of the agency's final orders.<1>
We will, however, AFFIRM seven (7) of the agency's final orders.<2>
ISSUES PRESENTED
Whether the agency properly dismissed fifty (50) complaints on the
grounds that: (1) the complainants contacted EEO counselors in an
untimely manner, (2) the allegations of the complainants failed to
state a claim; and (3) the allegations of the complainants' represent
a collateral attack on another forum's proceeding.
BACKGROUND
Prior to July 1, 2000, the complainants were employed by the agency's
Logistics Systems Support Center (LSSC), located in St. Louis, Missouri.
The LSSC was a component of the agency's Communications Electronics
Command (CECOM). In 1999, CECOM began the process of outsourcing the
work performed by the LSSC to a private contractor, the Computer Science
Corporation (CSC). Because of the decision to privatize, the complainants
were notified that a reduction-in-force (RIF) would be implemented.
In order to minimize the impact of the RIF, the agency devised what became
know as the Soft Landing program to assist affected employees. As part
of the program, employees who were involuntarily separated under the RIF
procedures were entitled, among other things, to a guaranteed job offer
from the CSC with pay and benefits that were comparable to the Federal
government. Management conducted a survey of the workforce, asking
employees to identify whether they would prefer to: (a) remain with the
Federal Government, either in the Retained Government Organization (RGO)
with the CSC or to transfer to another Federal agency, (b) volunteer for
the RIF and take a position with the CSC, or (c) retire. According to
the agency, approximately 51% of the employees indicated that accepting a
position with the CSC was their first choice. Approximately 25% wanted
to remain with the Federal government, with the balance indicating a
preference for accepting voluntary retirement with a separation incentive.
Based on seniority, the majority of employees received their first choice.
On May 24, 1999, Conrad Lohutko, an employee, contacted the EEO office.
Subsequently, he filed a class complaint against the agency that
alleged, among other things, discrimination based on age with respect
to the abolishment of the complainants' jobs. In support of the class
complaint, 80 statements were submitted by the purported class members.
On July 1, 2000, the LSSC ceased operation. On November 13, 2001, an
EEOC Administrative Judge (AJ) issued a decision rejecting the class
complaint for certification. The AJ found that the requirement of
adequacy of representation had not been satisfied. On appeal, in Lohutko
v. Department of the Army, EEOC Appeal No. 01A22022 (November 14, 2003),
the Commission affirmed the AJ's decision. In EEOC Request No. 05A40278
(December 30, 2003), Mr. Lohutko's request to have the initial decision
reconsidered was denied.
On January 27, 2004, an EEO official from CENCOM (the EEO official)
informed the complainants, by memorandum, that the AJ had denied
certification of the class action and that the appeal of that decision had
been denied. The EEO official also indicated that EEO representatives
would come to the LSSC to meet with the affected employees in order to
discuss their rights and responsibilities and how to proceed if there
was a desire to proceed with individual complaints. At the meeting,
which was held on February 10, 2004, EEO representatives held a briefing
for many of the complainants and collected numerous informal individual
complaints.<3>
In May 2004, the complainants filed formal complaints of discrimination
against the agency. For the most part, the complainants alleged that
they were discriminated against based on age when management made a
decision to abolish the positions of its older workers and to replace
them with younger employees. On November 17, 2004, the agency issued a
final order that dismissed the complainants' complaints on the grounds
that (1) the complainants sought EEO counseling in an untimely manner;
(2) the complainants' allegations failed to state a claim; and (3) the
complainants were attempting to collaterally attack the process by which
the LSSC was privatized. These appeals followed.<4>
ANALYSIS AND FINDINGS
Untimely EEO counselor contact
EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides, in pertinent part,
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.
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.
The agency argues that the complainants failed to contact an EEO counselor
within 45 days of the alleged discriminatory events; therefore, their
complaints should be dismissed on the grounds that they are untimely.
We note, however, that the Commission, in Mole v. Department of the Air
Force, EEOC Request No. 05910578 (September 25, 1991), held that the,
Commencement of a class action . . . suspends applicable time limits
to all asserted members of the class who would have been parties if the
class had been certified. Moreover, the Commission held that once
there was a final administrative ruling on the class certification
issue, the time limits for filing individual actions by rejected class
members resumes. Id.
Therefore, in the present case, the 45-day time limitation period for
contacting an EEO counselor was triggered, on December 31, 2003, the
day after EEOC Request No. 05A40278 was issued. Accordingly, any EEO
counselor contact that occurred on or before Friday, February 13, 2004,
the 45th day, was timely. The agency, in its EEO counselor's reports
and pre-complaint intake documents, acknowledged that forty-one (41)
of the complainants contacted an EEO official in order to initiate the
EEO process on or before February 13, 2004. Accordingly, we find that
all 41 of these complainants contacted an EEO counselor in a timely
manner. The record indicates that nine (9) complainants contacted EEO
officials after February 13, 2004. Therefore, we must determine whether
they presented an adequate justification for tolling the 45-day time
limitation period. 29 C.F.R. § 1614.604(c).
At the outset, we reject the contention raised on appeal that the
45-day time limitation period was not triggered until February 10,
2004, when the complainants' were informed of the final disposition of
Mr. Lohutko's appeal. As previously noted, pursuant to long standing
Commission precedent, the time limitation period resumed after the final
administrative ruling on the class certification issue. Moreover, we note
the Commission's decision in Davenport v. Department of Justice, EEOC
Appeal No. 07A30082 (December 5, 2003). In Davenport, the Commission
held that, [W]here class certification has been denied, there is no
regulatory requirement that an agency notify potential class members
(whether named' or not) of the dismissal of the class complaint, or of
their rights to file individual complaints.
We also find that the mere attendance of a complainant at the February
10, 2004 meeting would not, by itself, constitute EEO counselor contact.
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). Therefore, if a complainant attended the meeting in order
to obtain information, but did not exhibit an intent to begin the EEO
process until after the February 13, 2004 deadline, we would find,
absent an adequate justification for tolling the time period, that
their counselor contact would be untimely. Finally, the complainants
maintained that, after the decision was issued on the class action appeal,
that they were told that the time limit for filing individual complaints
would be waived. Although the January 27, 2004 memorandum may fairly be
interpreted as waiving time limits through the issuance of EEOC Request
No. 05A40278, a position that is consistent with the decision herein,
we find no persuasive evidence that the agency intended to waive the
45-day time limitation period for contacting an EEO counselor.
With regard to Complainants Joyce Bowen, John R. Morris, Michelle
Zellich and Lydia L. Lewis, the record indicates that they established
EEO counselor contact on February 16, March 5, March 10, and March 23,
respectively. The EEO counselor's reports and the pre-complaint intake
documents of these complainants do not indicate why they did not contact
an EEO counselor on or before February 13, 2004. We also find that they
did not present an adequate justification for tolling the time limitation
period in their appeal briefs. Accordingly, we affirm the dismissals of
their complaints.
With regard to Complainant Grant Stephens, the record indicates that he
established EEO counselor contact on February 17, 2004. According to the
EEO counselor's report, he did not learn that he could file an individual
EEO complaint until the February 10 meeting. There is no indication
in the record or in his appeal brief, however, regarding why he did not
initiate the EEO process before February 13, as did the majority of the
attendees of the February 10 meeting. Therefore, we do not find that he
provided an adequate justification for tolling the time limitation period.
We affirm the dismissal of his complaint.
Complainants Donald R. Harris, Richard Zellich and Jamie B. Vasquez
established EEO counselor contact on March 4, March 10 and March 19,
respectively. A review of the EEO counselor's reports indicate that
each of these individuals maintained that theey were not aware of the
fact that they could file individual EEO complaints. For example, in
the case of Complainant Vasquez, she indicated that she was only made
aware of the fact that she could file an individual complaint on March 17,
2004, when she spoke to another employee. The record indicates that both
Complainants Zellich and Vasquez retired from Federal service and, unlike
Complainant Harris, did not take a position with CSC. As we indicated
above, the agency was under no obligation to notify the complainants
that they could file individual complaints; however, we are cognizant
of the fact that Complainants Zellich and Vasquez, because they were out
of the work place, did not have access to the same information provided
to Complainant Harris and other employees. Accordingly, we will toll the
time limitation period with regard to Complainants Zellich and Vasquez.
We, however, do not find that Complainant Harris has provided an adequate
justification for tolling the time limitation period. The agency's
dismissal of Complainant Harris' complaint is affirmed.
With regard to Complainant Julius T. Crouch, the record indicates that
he established EEO counselor contact on March 10, 2004. According to
the EEO counselor's report, he maintained that he was not aware that
the appeal process on the class action had been completed. We note,
however, that he was the representative for the class complaint. Also,
we note his statement on appeal that when the class appeal decision
was issued a request was made to the agency for information on how the
complainants should proceed. There is no indication, however, regarding
why he did not initiate the EEO process on or before February 13, as did
the majority of the complainants. We do not find Complainant Crouch has
presented an adequate justification for tolling the 45-day time period.
Therefore, we affirm the agency's dismissal of his complaint.<5>
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 maintains that the complainants are not aggrieved because
they did not suffer a harm to a term, condition or privilege of their
employment. The agency notes that during the privatization process, the
complainants were given many options with regard to future employment.
According to the agency, the fact that they may be displeased with their
options does not mean that they suffered a harm.
The question as to whether a complainant is allegedly aggrieved due to
an unlawful employment practice for which there is a remedy under the
Federal equal employment statutes, of necessity, requires a consideration
of whether the complainant has alleged unlawful discrimination regarding
hiring, termination, compensation, or other terms, conditions, or
privileges of employment. Cobb v. Department of the Treasury, EEOC
Request No. 05970077 (March 13, 1997). Terms, conditions, or privileges
of employment include, inter alia, promotion, demotion, discipline,
reasonable accommodation, appraisals, awards, training, benefits,
assignments, overtime, leave, tours of duty, etc. Id. A complaint which
alleges unlawful disparate treatment regarding a specific term, condition,
or privilege of employment should not be dismissed for failure to state
a claim. Id. Among other things, the complainants alleged that the
agency, by abolishing their positions, forced them, for discriminatory
reasons, to either accept reassignments, resignations or retirements.
Therefore, we find that the complainants do state a claim.
Collateral Attack
According to the agency, the complainants' complaints should be dismissed
on the grounds that they represent a collateral attack on the process
by which the LCSS was privatized. The agency argued that, the A-76
Supplemental handbook establishes guidelines for administrative appeals
of the waiver decisions. Four extensive appeals were submitted and
were given full and fair consideration by the Secretary of the Army.
We disagree with the agency's position. There is no indication from the
record that the complainants had the opportunity or the ability to raise
allegations of discrimination as part of the aforementioned process.
We view this as being analogous to an agency having a negotiated
grievance procedure that does not allow an employee to raise allegations
of discrimination. In such situations, the Commission would allow the
employee to file an EEO complaint even though the matter may have already
been addressed in a prior grievance decision.
CONCLUSION
Accordingly, the agency's final orders that dismiss the forty-three (43)
complaints set forth at Appendix A are REVERSED. These complaints are
remanded for further processing in accordance with the decision and the
Order below. If possible, the agency should consolidate these complaints
for processing. The dismissals of the seven (7) complaints set forth
at Appendix B are affirmed.
ORDER (Modified)
The agency is ordered to process the remanded complaints set forth at
Appendix A in accordance with 29 C.F.R. § 1614.108. The agency shall
acknowledge to each individual complainant that it has received the
remanded complaint within thirty (30) calendar days of the date this
decision becomes final. The agency shall issue to each complainant
a copy of the investigative file and also shall notify each 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 a 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
letters of acknowledgment to each complainant and copies of the notices
that transmit the investigative files and notices of rights must be sent
to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (Modified)
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 complainants. If the agency does not comply with the Commission's
order, the complainants may petition the Commission for enforcement of
the order. 29 C.F.R. § 1614.503(a). The complainants also have the
right to file civil actions 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 complainants have the right to file a civil action on
their 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 a complainant files a civil action, the
administrative processing of their complaint, including any petition
for enforcement, will be terminated. See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (Modified)
The Commission may, in its discretion, reconsider the decision in this
case if a 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R)
(Modified)
For those complainants listed at Appendix A, 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.
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S) (Modified)
For those complainants listed at Appendix B, 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
____08-25-05______________
Date
Appendix A (Cases Remanded for Investigation)
John Kalinich Leann Brand
Carolyn Muller
ARHQAMC04MAR0031 ARHQAMC04FEB0027
ARHQAMC04FEB0019
EEOC Appeal No. 01A51825 EEOC Appeal
01A53531 EEOC Appeal No. 01A53546
Sheila Phillips Thomas M. Burns Michael Neitzert
ARHQAMC04FEB0020 ARHQAMC04FEB0058 ARHQAMC04FEB0012
EEOC Appeal No. 01A51846 EEOC Appeal No. 01A53532 EEOC Appeal
No. 01A53547
Terry V. Miller Gwendolyn A. Burse Janet O'Donnell
ARHQAMC04FEB0035 ARHQAMC04FEB0007 ARHQAMC04FEB0089
EEOC Appeal No. 01A51925 EEOC Appeal No. 01A53533
EEOC Appeal No. 01A53548
Jerry Phillips Tina A. Coyle Linda A. Petty
ARHQAMC04FEB0040 ARHQAMC04FEB0045 ARHQAMC04FEB0099
EEOC Appeal No. 01A51936 EEOC Appeal
No. 01A53534 EEOC Appeal No. 01A53549
Christy A. Wind Deborah A. Daniels Jeannette Scannell
ARQAMC04FEB0076 ARHQAMC04FEB0064 ARHQAMC04FEB0023
EEOC Appeal No. 01A51958 EEOC Appeal
No. 01A53535 EEOC Appeal No. 01A53550
Judith A. Betlach Joyce M. Fraser Daniel Siess
ARHQAMC04FEB0085 ARHQAMC04FEB0042 ARHQAMC04FEB0071
EOC Appeal 01A51967 EEOC Appeal No. 01A53536 EEOC Appeal No. 01A53551
James D. Spillers Marilyn Hahn Kenneth W. Spenser
ARHQAMC04FEB0037 ARHQAMC04FEB0054 ARHQAMC04FEB0005
EEOC Appeal 01A52040 EEOC Appeal No. 01A53537 EEOC Appeal No. 01A53552
Kenneth Nienkamp James S. Harshany Carolyn Teason
ARHQAMC04FEB0021 ARHQAMC04FEB0022
ARHQAMC04FEB0124
EEOC Appeal No. 01A52108 EEOC Appeal No. 01A53538 EEOC
Appeal No. 01A53554
Paula M. Hood Inece Houston Alma N. Tellez
ARHQAMC04FEB0053 ARHQAMC04FEB0003 ARHQAMC04FEB0009
EEOC Appeal No. 01A52656 EEOC Appeal No. 01A53539 EEOC Appeal
No. 01A53555
Steven P. Sedor Alma Howard Spencer P. Thilman
ARHQAMC04FEB0017 ARHQAMC04FEB0069 ARHQAMC04FEB0048
EEOC Appeal No. 01A53508 EEOC Appeal No. 01A53540 EEOC Appeal
No. 01A53556
Rodney M. Sorenson James A. Kramer Nancy E. Valenta
ARHQAMC04FEB0011 ARHQAMC04FEB0095 ARHQAMC04FEB0049
EEOC Appeal No. 01A53509 EEOC Appeal No. 01A53541 EEOC Appeal
No. 01A53557
John Bartin Eleen McClure Jamie Vasquez
ARHQAMC04FEB0055 ARHQAMC04FEB0015 ARHQAMC04APR0125
EEOC Appeal No. 01A53528 EEOC Appeal No. 01A53543 EEOC Appeal
No. 01A53558
Birdie Blackmon Maureen McNeill Linda Wolfe
ARHQAMC04FEB0052 ARHQAMC04FEB0079 ARHQAMC04FEB0006
EEOC Appeal No. 01A53529 EEOC Appeal No. 01A53544 EEOC Appeal
No. 01A53559
Reynold Blondin Gladys Moore James York
ARHQAMC04FEB0078 ARHQAMC04FEB0077
ARHQAMC04FEB0060
EEOC Appeal No. 01A53530 EEOC Appeal No. 01A53545 EEOC Appeal
No. 01A53560
Richard
W.
Zellich
ARHQAMC04MAR0111
EEOC
Appeal
No.
01A53562
Appendix B (Affirming the agency's
dismissals.)
Julius T. Crouch
ARHQAMC04FEB0065
EEOC Appeal No. 01A51932
Joyce T. Bowen
ARHQAMC04FEB0097
EEOC Appeal 01A51937
Donald R. Harris
ARHQAMC03FEB0103
EEOC Appeal 01A53510
John R. Morris
ARHQAMC04FEB0118
EEOC Appeal 01A53527
Lydia L. Lewis
ARHQAMC04FEB0120
EEOC Appeal No. 01A53542
Grant Stephens
ARHQAMC04FEB0100
EEOC Appeal No. 01A53553
Michelle Zellich
ARHQAMC04FEB0113
EEOC Appeal No. 01A53561
1We have listed the names, agency complaint numbers and Commission appeal
numbers of these forty-three (43) complainants at Appendix A.
2We have listed the names, agency complaint numbers and Commission appeal
numbers of these seven (7) complainants at Appendix B.
3On March 3, 2004, the EEO official issued a second memorandum that
rescinded the January 27, 2004 memorandum. She informed the complainants
that class members could not proceed unless they had timely filed
individual complaints. Because Mr. Lohutko was the only person who
had initiated an individual complaint, the EEO official stated that
the agency would resume processing his complaint. If the complainants
wanted to speak to an EEO counselor, they were told that they would be
made available to them; however, the counselors would advise them that
they were required to have contacted a counselor within 45 days of the
alleged discriminatory action.
4The agency mistakenly gave the complainants appeal rights to the Merit
Systems Protection Board (MSPB), not the Commission. The complainants,
however, simultaneously filed appeals with both the Commission and the
MSPB. In May 2005, the MSPB issued a decision finding that it did not
have jurisdiction over the subject matter raised in the complainants'
appeals.
5On appeal, Complainant Crouch also maintained that the agency should
not be allowed to dismiss his complaint because he requested a hearing
before an EEOC Administrative Judge prior to the agency's dismissal of
his complaint. We note, however, that his request for a hearing was made
by letter dated December 2, 2004. The agency's final action dismissing
his complaint, however, was dated November 17, 2004.
| [
"Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)",
"Mole v. Department of the Air Force, EEOC Request No. 05910578 (September 25, 1991)",
"Allen v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996)",
"Diaz v. Department of the Air Force, EEOC Request No. 05... | [
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0.06418771296739578,
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0.06322066485881805,
0.005476801190525293,
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-0.012988620437681675,
0.00513437669724226,
0.08095855265855789,
0.050265777856111526,
0.0502769835293293,
0.05204289... |
293 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120102853.txt | 0120102853.txt | TXT | text/plain | 11,016 | Lizzette Caballero, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. | May 18, 2010 | Appeal Number: 0120102853
Background:
At the time of events giving rise to this complaint, Complainant was as a Former Transportation Security Officer at the Agency's Luis Munoz Marin International Airport facility in Carolina, Puerto Rico. On November 12, 2005, Complainant filed a formal complaint alleging that the Agency subjected her to harassment and discrimination on the bases of sex (female), age (55), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On May 23, 2003, TSA demoted her from Screening Manager to Screener.
2. From March 2003 through September 26, 2004, TSA harassed her on numerous occasions, including the following examples:
a) TSA assigned her to perform timekeeping duties and subsequently moved her out of the office after she provided information about the Federal Security Director's (FSD) relationship with the Stakeholder Manager in connection with Complainant's prior sexual harassment complaint.
b) TSA allowed the alleged sexual harasser in her prior sexual harassment complaint to enter the Operations office.
c) TSA required her to submit additional medical documentation concerning her back problem, causing her to incur a $200 expense.
d) TSA assigned her to the baggage area after she became a Screener, while permitting other screeners to work in the office.
e) TSA assigned her to the busiest checkpoint, known as the "punishment checkpoint" to humiliate her.
f) Screeners at the "punishment checkpoint," whom she formerly supervised, directed unwelcome remarks and body language at her.
g) The FSD refused to accept a letter from her physician and required her to provide one from a psychiatrist within two weeks.
h) The FSD refused to keep her apprised of her sexual harassment complaint.
i) The FSD instructed an employee to monitor her dress while allowing other female employees to dress casually.
j) The Administrative Officer (AO) opposed her workers' compensation claims and provided false information to the Office of Workers' Compensation Programs.
The record reveals that Complainant made contact with an EEO Counselor on August 1, 2005, and the initial interview was held on October 5, 2005. On November 4, 2005, Complainant was issued a Notice of Right to File a Discrimination Complaint. Subsequently, she filed a formal complaint. On July 25, 2006, the Agency dismissed the complaint on the grounds of untimely EEO counselor contact. On August 12, 2006, Complainant appealed the dismissal to the Commission. On November 13, 2006, the Agency filed a motion with the Commission to dismiss this case as moot because the Agency had improperly dismissed the case as untimely and wanted to correct the error. The Agency indicated that the record showed that it found evidence that Complainant had contacted an EEO Counselor in May 2003. The Agency indicated that an investigation would be initiated and a decision on the merits would be issued. On May 18, 2010, the Agency issued a new decision again dismissing Complainant's claims for untimely EEO Counselor contact. Thereafter, Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant disputes the Agency's dismissal of her complaint for untimely EEO Counselor contact when in a previous decision it acknowledged having evidence which showed that she, on May 28, 2003, had contacted an EEO Counselor. Complainant requests that a FAD on the merits be produced.
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 was as a Former Transportation Security Officer at the Agency's Luis Munoz Marin International Airport facility in Carolina, Puerto Rico. On November 12, 2005, Complainant filed a formal complaint alleging that the Agency subjected her to harassment and discrimination on the bases of sex (female), age (55), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On May 23, 2003, TSA demoted her from Screening Manager to Screener.
2. From March 2003 through September 26, 2004, TSA harassed her on numerous occasions, including the following examples:
a) TSA assigned her to perform timekeeping duties and subsequently moved her out of the office after she provided information about the Federal Security Director's (FSD) relationship with the Stakeholder Manager in connection with Complainant's prior sexual harassment complaint.
b) TSA allowed the alleged sexual harasser in her prior sexual harassment complaint to enter the Operations office.
c) TSA required her to submit additional medical documentation concerning her back problem, causing her to incur a $200 expense.
d) TSA assigned her to the baggage area after she became a Screener, while permitting other screeners to work in the office.
e) TSA assigned her to the busiest checkpoint, known as the "punishment checkpoint" to humiliate her.
f) Screeners at the "punishment checkpoint," whom she formerly supervised, directed unwelcome remarks and body language at her.
g) The FSD refused to accept a letter from her physician and required her to provide one from a psychiatrist within two weeks.
h) The FSD refused to keep her apprised of her sexual harassment complaint.
i) The FSD instructed an employee to monitor her dress while allowing other female employees to dress casually.
j) The Administrative Officer (AO) opposed her workers' compensation claims and provided false information to the Office of Workers' Compensation Programs.
The record reveals that Complainant made contact with an EEO Counselor on August 1, 2005, and the initial interview was held on October 5, 2005. On November 4, 2005, Complainant was issued a Notice of Right to File a Discrimination Complaint. Subsequently, she filed a formal complaint. On July 25, 2006, the Agency dismissed the complaint on the grounds of untimely EEO counselor contact. On August 12, 2006, Complainant appealed the dismissal to the Commission. On November 13, 2006, the Agency filed a motion with the Commission to dismiss this case as moot because the Agency had improperly dismissed the case as untimely and wanted to correct the error. The Agency indicated that the record showed that it found evidence that Complainant had contacted an EEO Counselor in May 2003. The Agency indicated that an investigation would be initiated and a decision on the merits would be issued. On May 18, 2010, the Agency issued a new decision again dismissing Complainant's claims for untimely EEO Counselor contact. Thereafter, Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant disputes the Agency's dismissal of her complaint for untimely EEO Counselor contact when in a previous decision it acknowledged having evidence which showed that she, on May 28, 2003, had contacted an EEO Counselor. Complainant requests that a FAD on the merits be produced.
ANALYSIS AND FINDINGS
The record discloses that the alleged discriminatory incidents occurred at the earliest in March 2003, and at the latest on September 26, 2004 but Complainant did not initiate contact with an EEO Counselor until August 1, 2005, which is well beyond the forty-five (45) day limitation period. Complainant argued on appeal, that she contacted an EEO Counselor on May 28, 2003, regarding the harassment she experienced and the demotion. The record supports her argument as there are two letters in the file from the EEO Counselor. The first letter dated June 2003, acknowledges receipt of Complainant's letter. In the second letter dated July 2003, the EEO Counselor again acknowledges the receipt of Complainant's May 28, 2003, inquiry and included attached forms which were to be returned to the EEO Counselor. The record however does not show that the forms were returned or that any action was taken with regard to these claims.
We find that although the record reveals that Complainant contacted an EEO Counselor in May 2003, there is no evidence that Complainant had any further contact with the EEO office until August 2005. We find that although Complainant may have initiated contact with an EEO Counselor, she did not exhibit the intent to pursue the EEO process until August 2005. The record shows that when Complainant was asked why she had waited so long to pursue her complaint, she indicated that she had waited for proof from the Office of Worker's Compensation (OWC) and once she received a letter which indicated that OWC believed she had been subjected to discrimination, she pursued her claim.1 While we find that the Agency has been less than helpful with regard to explaining its decision to again dismiss Complainant's complaint on the grounds of untimely counselor contact, we find that Complainant abandoned her claims as there is no indication in the record that any action showing an intent to pursue the EEO process was made by her after her May 2003 contact. See Gates v Department of the Air Force, EEOC Request No. 05910798 (November 22, 1991)(citing Moore v. Department of Treasury, EEOC Request No. 05900194 (May 24, 1990); Allen v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996). | Lizzette Caballero,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120102853
Agency No. HS05-TSA-02322
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated May 18, 2010, 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., 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 was as a Former Transportation Security Officer at the Agency's Luis Munoz Marin International Airport facility in Carolina, Puerto Rico. On November 12, 2005, Complainant filed a formal complaint alleging that the Agency subjected her to harassment and discrimination on the bases of sex (female), age (55), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On May 23, 2003, TSA demoted her from Screening Manager to Screener.
2. From March 2003 through September 26, 2004, TSA harassed her on numerous occasions, including the following examples:
a) TSA assigned her to perform timekeeping duties and subsequently moved her out of the office after she provided information about the Federal Security Director's (FSD) relationship with the Stakeholder Manager in connection with Complainant's prior sexual harassment complaint.
b) TSA allowed the alleged sexual harasser in her prior sexual harassment complaint to enter the Operations office.
c) TSA required her to submit additional medical documentation concerning her back problem, causing her to incur a $200 expense.
d) TSA assigned her to the baggage area after she became a Screener, while permitting other screeners to work in the office.
e) TSA assigned her to the busiest checkpoint, known as the "punishment checkpoint" to humiliate her.
f) Screeners at the "punishment checkpoint," whom she formerly supervised, directed unwelcome remarks and body language at her.
g) The FSD refused to accept a letter from her physician and required her to provide one from a psychiatrist within two weeks.
h) The FSD refused to keep her apprised of her sexual harassment complaint.
i) The FSD instructed an employee to monitor her dress while allowing other female employees to dress casually.
j) The Administrative Officer (AO) opposed her workers' compensation claims and provided false information to the Office of Workers' Compensation Programs.
The record reveals that Complainant made contact with an EEO Counselor on August 1, 2005, and the initial interview was held on October 5, 2005. On November 4, 2005, Complainant was issued a Notice of Right to File a Discrimination Complaint. Subsequently, she filed a formal complaint. On July 25, 2006, the Agency dismissed the complaint on the grounds of untimely EEO counselor contact. On August 12, 2006, Complainant appealed the dismissal to the Commission. On November 13, 2006, the Agency filed a motion with the Commission to dismiss this case as moot because the Agency had improperly dismissed the case as untimely and wanted to correct the error. The Agency indicated that the record showed that it found evidence that Complainant had contacted an EEO Counselor in May 2003. The Agency indicated that an investigation would be initiated and a decision on the merits would be issued. On May 18, 2010, the Agency issued a new decision again dismissing Complainant's claims for untimely EEO Counselor contact. Thereafter, Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant disputes the Agency's dismissal of her complaint for untimely EEO Counselor contact when in a previous decision it acknowledged having evidence which showed that she, on May 28, 2003, had contacted an EEO Counselor. Complainant requests that a FAD on the merits be produced.
ANALYSIS AND FINDINGS
The record discloses that the alleged discriminatory incidents occurred at the earliest in March 2003, and at the latest on September 26, 2004 but Complainant did not initiate contact with an EEO Counselor until August 1, 2005, which is well beyond the forty-five (45) day limitation period. Complainant argued on appeal, that she contacted an EEO Counselor on May 28, 2003, regarding the harassment she experienced and the demotion. The record supports her argument as there are two letters in the file from the EEO Counselor. The first letter dated June 2003, acknowledges receipt of Complainant's letter. In the second letter dated July 2003, the EEO Counselor again acknowledges the receipt of Complainant's May 28, 2003, inquiry and included attached forms which were to be returned to the EEO Counselor. The record however does not show that the forms were returned or that any action was taken with regard to these claims.
We find that although the record reveals that Complainant contacted an EEO Counselor in May 2003, there is no evidence that Complainant had any further contact with the EEO office until August 2005. We find that although Complainant may have initiated contact with an EEO Counselor, she did not exhibit the intent to pursue the EEO process until August 2005. The record shows that when Complainant was asked why she had waited so long to pursue her complaint, she indicated that she had waited for proof from the Office of Worker's Compensation (OWC) and once she received a letter which indicated that OWC believed she had been subjected to discrimination, she pursued her claim.1 While we find that the Agency has been less than helpful with regard to explaining its decision to again dismiss Complainant's complaint on the grounds of untimely counselor contact, we find that Complainant abandoned her claims as there is no indication in the record that any action showing an intent to pursue the EEO process was made by her after her May 2003 contact. See Gates v Department of the Air Force, EEOC Request No. 05910798 (November 22, 1991)(citing Moore v. Department of Treasury, EEOC Request No. 05900194 (May 24, 1990); Allen v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996).
CONCLUSION
Complainant's has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Therefore, we find that Complainant's complaint was properly dismissed for untimely EEO Counselor contact. The Agency's final 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 (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
___8/17/12_______________
Date
1 The Commission has long held that a Complainant cannot wait for evidence that they were discriminated against to pursue their claim but instead must take action as soon as they reasonably suspect that discrimination was occurred.
------------------------------------------------------------
------------------------------------------------------------
| [
"Moore v. Department of Treasury, EEOC Request No. 05900194 (May 24, 1990)",
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294 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120100252.txt | 0120100252.txt | TXT | text/plain | 11,328 | Edwin Lugo, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency. | October 8, 2009 | Appeal Number: 0120100252
Background:
At the time of events giving rise to this complaint, Complainant was a
former Program Support Assistant, GS-5 at the Agency's VA Medical Center
facility in Bronx, NY. He is currently employed as a Federal Correctional
Officer for the Department of Justice, Federal Bureau of Prisons (BOP).
On behalf of the BOP, the Office of Personnel Management (OPM) conducted
a background investigation on Complainant, which included obtaining
information from an official with his former employer, the Agency.
By correspondence to Complainant dated June 23, 2008, the BOP notified him
that issues of concern arose with the background investigation, and gave
him an opportunity to respond. Specifically, BOP advised Complainant that
the background investigation included a review of his personnel record
with the Agency, which revealed he was under internal investigation for
sending pornographic pictures to at least five female employees using
the Agency's computer. BOP advised that the background investigation
revealed he used profanity on several occasions when speaking with Agency
co-workers and a supervisor, and that he resigned before disciplinary
action could be taken. BOP advised that the background investigation
revealed his record showed that in July 2003 the Agency gave him a
verbal reprimand for violating sick leave policy; on October 27, 2003,
he was written up for excessive use of the telephone; and on October 29,
2009, he was written up for not doing his work. BOP asked Complainant
to comment on the above.
On July 1, 2008, Complainant replied to BOP that he did not send
pornography to any female employees, he was not under investigation, and
he was never given a verbal or written reprimand or warning of any type.
He indicated that he was forced to resign because of unlawful harassment,
and that a two Agency managers and an Agency EEO Manager have been
and still are trying to harass and retaliate against him and have been
slandering and trying to defame his name.
Complainant later made a request to OPM for a copy of background
investigation, and received it on August 7, 2009. The background
investigation indentified the source of the above information as the
above EEO Manager/Director of Public Affairs, and that Complainant had
filed an EEO complaint with the Agency.
Complainant contacted an EEO counselor on August 11, 2009, and then filed
an EEO complaint alleging discrimination based on reprisal for prior EEO
activity under Title VII and the Rehabilitation Act when on August 7,
2009, he learned that the Agency EEO Manager/Director of Public Affairs
divulged information about his prior EEO activity to an OPM investigator,
and made fraudulent statements about his work ethic and conduct, and
committed fraudulent actions against him.
Complainant had a pending civil action in the United States District
Court for the Southern District of New York, 1:06-cv-13187. Therein,
he alleged, in relevant part, discrimination based on reprisal for prior
EEO activity when after he applied in November 2006 for reinstatement
at another Agency facility, the EEO Manager/Director of Public Affairs
advised the selecting official that in conducting an investigation
because of Complainant's EEO complaint it was learned Complainant sent
pornographic photos to several female employees. On or about April 20,
2009, Complainant filed a motion to amend his civil action to add the
claim that Agency officials were continuing to retaliate against him by
giving negative information to the OPM background investigator, citing
the BOP's June 23, 2008, correspondence. With the motion, he referred
to a November 2006 email by the EEO Manager/Director of Public Affairs,
writing it contained wording was similar to that in the June 23, 2008,
correspondence.1
The Agency dismissed the complaint for failure to timely initiate
contact with an EEO counselor. It reasoned that Complainant was aware
of the alleged discrimination by April 19, 2009, but did not initiate
EEO contact until August 11, 2009, beyond the 45 calendar day time limit
to initiate EEO counseling.2
CONTENTIONS ON APPEAL
Complainant contends that the June 23, 2008, BOP correspondence only
made him generally aware that the Agency was making false allegations and
giving false reference, and he did not learn until August 7, 2009, that
it was the EEO Manager/Director of Public Affairs who divulged that he
filed an EEO complaint and committed fraud by making false allegations
and giving false reference about him which defamed his character.
In opposition to the appeal, the Agency argues that its dismissal should
be affirmed.
Legal Analysis:
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.
Complainant learned in June 2008 that the Agency gave a negative reference
to an OPM investigator who was conducting a background investigation on
Complainant for BOP. He knew at this point that it included contentions
that he emailed pornographic pictures to female employees using the
Agency's computer, used profanity, resigned before the Agency could
discipline him, and that he had been written up and reprimanded, and
contended all this was false. On August 7, 2008, he learned the identity
of the Agency reference. Applying the above law, we find that Complainant
had a reasonable suspicion of retaliation in June 2008, and the additional
information he gained on August 7, 2008, were supportive facts.
Final Decision:
Accordingly, the Agency's decision to dismiss the complaint is AFFIRMED. | Edwin Lugo,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120100252
Agency No. 200H-0526-2009104254
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated October 8, 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. 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 a
former Program Support Assistant, GS-5 at the Agency's VA Medical Center
facility in Bronx, NY. He is currently employed as a Federal Correctional
Officer for the Department of Justice, Federal Bureau of Prisons (BOP).
On behalf of the BOP, the Office of Personnel Management (OPM) conducted
a background investigation on Complainant, which included obtaining
information from an official with his former employer, the Agency.
By correspondence to Complainant dated June 23, 2008, the BOP notified him
that issues of concern arose with the background investigation, and gave
him an opportunity to respond. Specifically, BOP advised Complainant that
the background investigation included a review of his personnel record
with the Agency, which revealed he was under internal investigation for
sending pornographic pictures to at least five female employees using
the Agency's computer. BOP advised that the background investigation
revealed he used profanity on several occasions when speaking with Agency
co-workers and a supervisor, and that he resigned before disciplinary
action could be taken. BOP advised that the background investigation
revealed his record showed that in July 2003 the Agency gave him a
verbal reprimand for violating sick leave policy; on October 27, 2003,
he was written up for excessive use of the telephone; and on October 29,
2009, he was written up for not doing his work. BOP asked Complainant
to comment on the above.
On July 1, 2008, Complainant replied to BOP that he did not send
pornography to any female employees, he was not under investigation, and
he was never given a verbal or written reprimand or warning of any type.
He indicated that he was forced to resign because of unlawful harassment,
and that a two Agency managers and an Agency EEO Manager have been
and still are trying to harass and retaliate against him and have been
slandering and trying to defame his name.
Complainant later made a request to OPM for a copy of background
investigation, and received it on August 7, 2009. The background
investigation indentified the source of the above information as the
above EEO Manager/Director of Public Affairs, and that Complainant had
filed an EEO complaint with the Agency.
Complainant contacted an EEO counselor on August 11, 2009, and then filed
an EEO complaint alleging discrimination based on reprisal for prior EEO
activity under Title VII and the Rehabilitation Act when on August 7,
2009, he learned that the Agency EEO Manager/Director of Public Affairs
divulged information about his prior EEO activity to an OPM investigator,
and made fraudulent statements about his work ethic and conduct, and
committed fraudulent actions against him.
Complainant had a pending civil action in the United States District
Court for the Southern District of New York, 1:06-cv-13187. Therein,
he alleged, in relevant part, discrimination based on reprisal for prior
EEO activity when after he applied in November 2006 for reinstatement
at another Agency facility, the EEO Manager/Director of Public Affairs
advised the selecting official that in conducting an investigation
because of Complainant's EEO complaint it was learned Complainant sent
pornographic photos to several female employees. On or about April 20,
2009, Complainant filed a motion to amend his civil action to add the
claim that Agency officials were continuing to retaliate against him by
giving negative information to the OPM background investigator, citing
the BOP's June 23, 2008, correspondence. With the motion, he referred
to a November 2006 email by the EEO Manager/Director of Public Affairs,
writing it contained wording was similar to that in the June 23, 2008,
correspondence.1
The Agency dismissed the complaint for failure to timely initiate
contact with an EEO counselor. It reasoned that Complainant was aware
of the alleged discrimination by April 19, 2009, but did not initiate
EEO contact until August 11, 2009, beyond the 45 calendar day time limit
to initiate EEO counseling.2
CONTENTIONS ON APPEAL
Complainant contends that the June 23, 2008, BOP correspondence only
made him generally aware that the Agency was making false allegations and
giving false reference, and he did not learn until August 7, 2009, that
it was the EEO Manager/Director of Public Affairs who divulged that he
filed an EEO complaint and committed fraud by making false allegations
and giving false reference about him which defamed his character.
In opposition to the appeal, the Agency argues that its dismissal should
be affirmed.
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). The time limit to seek EEO
counseling shall be extended when an individual shows he did not
know and reasonably should not have known that the discriminatory
action or personnel action occurred. 29 C.F.R. § 1614.105(a)(2).
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.
Complainant learned in June 2008 that the Agency gave a negative reference
to an OPM investigator who was conducting a background investigation on
Complainant for BOP. He knew at this point that it included contentions
that he emailed pornographic pictures to female employees using the
Agency's computer, used profanity, resigned before the Agency could
discipline him, and that he had been written up and reprimanded, and
contended all this was false. On August 7, 2008, he learned the identity
of the Agency reference. Applying the above law, we find that Complainant
had a reasonable suspicion of retaliation in June 2008, and the additional
information he gained on August 7, 2008, were supportive facts.
Accordingly, the Agency's decision to dismiss the complaint is AFFIRMED.3
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
March 31, 2011
__________________
Date
1 Complainant never finalized his motion by amending the civil action
to include the above claim, and it was stricken by the Court.
2 It appears that the Agency did not have the documentary evidence
of when Complainant received the June 23, 2008, BOP correspondence.
On appeal, Complainant submitted a copy of his July 1, 2008, reply to
the correspondence to BOP.
3 The Agency also dismissed the complaint for failure to state a claim.
As we find Complainant did not timely initiate EEO counseling, we need
not address whether he stated a claim.
??
??
??
??
| [
"Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)",
"29 C.F.R. § 1614.105(a)",
"29 C.F.R. § 1614.405",
"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. §§ 791"
] | [
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0.006494... |
295 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120093659.r.txt | 0120093659.r.txt | TXT | text/plain | 9,578 | Martin Gray, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency. | August 13, 2009 | Appeal Number: 0120093659
Case Facts:
Complainant filed a timely appeal with this Commission from the final
agency decision dated August 13, 2009, 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 March 13, 2009, complainant initiated EEO Counselor contact.
Informal efforts to resolve his concerns were unsuccessful.
On June 17, 2009, complainant filed the instant formal complaint.
Therein, complainant alleged that he was subjected to discrimination on
the bases of race and sex when:
he was subjected to harassment from October 2008 through January 21,
2009, resulting in his constructive discharge.
In its August 13, 2009 final decision, the agency dismissed complainant's
formal complaint pursuant to 29 C.F.R. § 1614.107(a)(2), on the grounds
of untimely EEO Counselor contact, asserting he did not contact the EEO
Counselor within the required 45-day limitation period. The agency noted
that a review of the record reflects that complainant tried to resolve the
issue through the chain of command before filing the instant complaint.
The agency determined that complainant's use of an internal agency
procedure does not toll the time limit for initial EEO contact.
On appeal, complainant argues that he was not aware of the 45-day
limitation period for contacting an EEO Counselor. Complainant further
states "I knew that there was a 90 day timeframe; I thought I was within
that time frame to the best of my knowledge. I was off in my calculation
by 4 days [emphasis in the original]."
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 determines that the agency properly dismissed the instant
complaint for untimely EEO Counselor contact. The record indicates that
the last alleged date of discrimination occurred on January 21, 2009,
but that complainant did not initiate contact with an EEO Counselor until
March 13, 2009, which is beyond the forty-five day limitation period.
The record contains a memorandum dated August 6, 2009 from the EEO Manager
(M1). Therein, M1 stated that from September 2, 2008 through September
4, 2008, complainant attended EEO related training when he attended the
New Employee Orientation (NEO).1 M1 further stated that she was aware
of the information provided during the NEO. Specifically, M1 stated
that subjects discussed during the NEO "included Prevention of Sexual
Harassment and No Fear Act. The EEO process including EEO time frames
for processing an EEO complaint are included in these training courses.
Included is the agenda for NEO whereby you can see that the EEO process
was discussed." M1 also stated that EEO posters were on display in
complainant's facility that contained the 45-day limitation period.
M1 stated that the EEO posters "are located on the EEO bulleting boards
in building one and building two. They are also posted on all bulletin
boards in all work areas. The EEO posters have been located on these
billboards since 2003."
The record also contains a copy of complainant's NEO signed by
complainant reflecting that he underwent orientation from September 2,
2008 to September 4, 2008; and a copy of NEO agenda which outlined the
45-day limitation period for contacting an EEO Counselor. The record
contains a copy of the EEO poster outlining the 45-day limitation period
and pictures of the EEO posters posted on the billboards in buildings
1 and 2. Based on these circumstances, we find that complainant had
constructive knowledge of the applicable time limits. In addition, we
note that complainant suggested the possibility of discrimination when
he attempted to resolve his issue through an internal agency process,
and therefore, demonstrated he suspected discrimination at that time.
Final Decision:
Accordingly, the agency's final decision dismissing the instant complaint is AFFIRMED. | Martin Gray,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120093659
Agency No. 2003-0549-2009102123
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated August 13, 2009, 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 March 13, 2009, complainant initiated EEO Counselor contact.
Informal efforts to resolve his concerns were unsuccessful.
On June 17, 2009, complainant filed the instant formal complaint.
Therein, complainant alleged that he was subjected to discrimination on
the bases of race and sex when:
he was subjected to harassment from October 2008 through January 21,
2009, resulting in his constructive discharge.
In its August 13, 2009 final decision, the agency dismissed complainant's
formal complaint pursuant to 29 C.F.R. § 1614.107(a)(2), on the grounds
of untimely EEO Counselor contact, asserting he did not contact the EEO
Counselor within the required 45-day limitation period. The agency noted
that a review of the record reflects that complainant tried to resolve the
issue through the chain of command before filing the instant complaint.
The agency determined that complainant's use of an internal agency
procedure does not toll the time limit for initial EEO contact.
On appeal, complainant argues that he was not aware of the 45-day
limitation period for contacting an EEO Counselor. Complainant further
states "I knew that there was a 90 day timeframe; I thought I was within
that time frame to the best of my knowledge. I was off in my calculation
by 4 days [emphasis in the original]."
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 determines that the agency properly dismissed the instant
complaint for untimely EEO Counselor contact. The record indicates that
the last alleged date of discrimination occurred on January 21, 2009,
but that complainant did not initiate contact with an EEO Counselor until
March 13, 2009, which is beyond the forty-five day limitation period.
The record contains a memorandum dated August 6, 2009 from the EEO Manager
(M1). Therein, M1 stated that from September 2, 2008 through September
4, 2008, complainant attended EEO related training when he attended the
New Employee Orientation (NEO).1 M1 further stated that she was aware
of the information provided during the NEO. Specifically, M1 stated
that subjects discussed during the NEO "included Prevention of Sexual
Harassment and No Fear Act. The EEO process including EEO time frames
for processing an EEO complaint are included in these training courses.
Included is the agenda for NEO whereby you can see that the EEO process
was discussed." M1 also stated that EEO posters were on display in
complainant's facility that contained the 45-day limitation period.
M1 stated that the EEO posters "are located on the EEO bulleting boards
in building one and building two. They are also posted on all bulletin
boards in all work areas. The EEO posters have been located on these
billboards since 2003."
The record also contains a copy of complainant's NEO signed by
complainant reflecting that he underwent orientation from September 2,
2008 to September 4, 2008; and a copy of NEO agenda which outlined the
45-day limitation period for contacting an EEO Counselor. The record
contains a copy of the EEO poster outlining the 45-day limitation period
and pictures of the EEO posters posted on the billboards in buildings
1 and 2. Based on these circumstances, we find that complainant had
constructive knowledge of the applicable time limits. In addition, we
note that complainant suggested the possibility of discrimination when
he attempted to resolve his issue through an internal agency process,
and therefore, demonstrated he suspected discrimination at that time.
Accordingly, the agency's final decision dismissing the instant 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
December 18, 2009
__________________
Date
1 The record reflects that M1 inadvertently identified the date of NEO as
September 29, 2008 instead of from September 2, 2008 through September 4,
2008.
??
??
??
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296 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120170652.r.txt | 0120170652.r.txt | TXT | text/plain | 12,252 | Nicolasa M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency. | November 22, 2016 | Appeal Number: 0120170652
Background:
During the period at issue, Complainant worked as a Postmaster at the Agency's facility in Sutter Creek, California. On November 10, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female), age, and in reprisal for prior protected EEO activity.2
In its final decision, dated November 22, 2016, the Agency framed Complainant's claim in the following fashion:
On July 19, 2016, [Complainant] received a letter indicating that [her] promotional pay increase in June 2012 of 2% would not be adjusted.
The Agency dismissed this claim on the grounds of untimely EEO Counselor contact. The Agency reasoned that Complainant did not contact an EEO Counselor until August 4, 2016, more than four years after the alleged incident in which Complainant was denied her requested pay increase of 5 percent.
The Agency, in its final decision, noted that Complainant also alleged dissatisfaction with the processing of her current complaint and that this matter was handled by the appropriate Agency official.
The instant appeal followed. On appeal, Complainant asserts that the instant complaint involves two claims. Complainant asserts that she is alleging discriminatory compensation and that she is alleging reprisal based on statements made by an EEO Counselor. Complainant states that these statements were made in an effort to deter her from engaging in the EEO process
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.105(g) provides that the EEO Counselor shall not attempt in any way to restrain the aggrieved person from filing a complaint. We have held that comments on their face that discourage an employee from participating in the EEO process are evidence of per se retaliation. See Binseel v. Dep't of the Army, EEOC Request No. 05970584 (Oct. 8, 1998). Based on the foregoing, we find that Complainant is alleging that she was subjected to per se retaliation based on the alleged comments by the EEO Counselor. | Nicolasa M.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120170652
Agency No. 4F-956-0099-16
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated November 22, 2016, 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., 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.
BACKGROUND
During the period at issue, Complainant worked as a Postmaster at the Agency's facility in Sutter Creek, California. On November 10, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female), age, and in reprisal for prior protected EEO activity.2
In its final decision, dated November 22, 2016, the Agency framed Complainant's claim in the following fashion:
On July 19, 2016, [Complainant] received a letter indicating that [her] promotional pay increase in June 2012 of 2% would not be adjusted.
The Agency dismissed this claim on the grounds of untimely EEO Counselor contact. The Agency reasoned that Complainant did not contact an EEO Counselor until August 4, 2016, more than four years after the alleged incident in which Complainant was denied her requested pay increase of 5 percent.
The Agency, in its final decision, noted that Complainant also alleged dissatisfaction with the processing of her current complaint and that this matter was handled by the appropriate Agency official.
The instant appeal followed. On appeal, Complainant asserts that the instant complaint involves two claims. Complainant asserts that she is alleging discriminatory compensation and that she is alleging reprisal based on statements made by an EEO Counselor. Complainant states that these statements were made in an effort to deter her from engaging in the EEO process
ANALYSIS AND FINDINGS
The Agency improperly dismissed Complainant's discriminatory compensation claim on the grounds of untimely EEO Counselor contact. Complainant's EEO Counselor contact was timely under the Lilly Ledbetter Fair Pay Act (Ledbetter Act), Pub. L. No. 111-12, 123 Stat. 5. The Ledbetter Act applies to all claims of discrimination in compensation, pending on or after May 28, 2007, under Title VII, the Rehabilitation Act, and the Age Discrimination in Employment Act. With respect to Title VII claims, Section 3 of the Ledbetter Act provides that:
An unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or part from such a decision or other practice.
Complainant initiated EEO contact on August 4, 2016, Complainant's EEO contact was timely because, as a current Agency employee, it was within 45 days of her last paycheck. Therefore, we find that the Agency improperly dismissed Complainant's compensation claim for untimely EEO Counselor contact.
We also find that the Agency improperly dismissed Complainant's claim that she was subjected to unlawful retaliation when the EEO Counselor made negative comments to her regarding her participation in the EEO process. While the Agency found this claim to be alleging dissatisfaction with the processing of Complainant's complaint, we disagree. We find, instead, that Complainant is alleging that the EEO Counselor's comments constituted per se reprisal. In her pre-complaint paperwork, Complainant asserts that the EEO Counselor made various comments to her in an effort to try to deter her from pursuing the EEO process. Specifically, Complainant states that the EEO Counselor stated, "you are putting your name out there, putting a negative on you;" and that the EEO Counselor told her that this could hinder her or have ramifications for any promotions Complainant may pursue in the future.
EEOC Regulation 29 C.F.R. § 1614.105(g) provides that the EEO Counselor shall not attempt in any way to restrain the aggrieved person from filing a complaint. We have held that comments on their face that discourage an employee from participating in the EEO process are evidence of per se retaliation. See Binseel v. Dep't of the Army, EEOC Request No. 05970584 (Oct. 8, 1998). Based on the foregoing, we find that Complainant is alleging that she was subjected to per se retaliation based on the alleged comments by the EEO Counselor.
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint and we REMAND this matter to the Agency for further processing in accordance with the Order below.
ORDER (E1016)
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 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 (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 (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
March 24, 2017
__________________
Date
2 While the Agency only listed reprisal as a basis in its final decision, a review of the record reflects that Complainant is also raising sex and age as bases with respect to her discriminatory compensation claim.
------------------------------------------------------------
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297 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120181803.txt | 0120181803.txt | TXT | text/plain | 12,015 | McKinley P.,1 Complainant, v. Peter O'Rourke, Acting Secretary, Department of Veterans Affairs, Agency. | July 15, 2003 | Appeal Number: 0120181803
Case Facts:
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) regarding his claim 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.
At the time of events giving rise to this complaint, Complainant's representative (Representative) contacted the Agency's EEO District Manager via email beginning in February 2018. The Representative sought to raise Complainant's claim that he had been subjected to retaliatory harassment following the resolution of his prior EEO complaint pursuant to a settlement agreement in 2016.
The EEO District Manager indicated that Complainant needed to contact a specific EEO Counselor (Counselor 1). However, the Representative requested an alternate Counselor noting that Counselor 1 contacted Complainant without the Representative. The EEO District Manager denied Complainant's request and stated that Complainant must contact Counselor 1. Further, he indicated that the EEO Office would no longer communicate with the Representative until Complainant initiates contact with Counselor 1 and provides the Agency in writing that the Representative is in fact Complainant's representative of record. The EEO District Manager stated that, for purposes of timeliness, Complainant's date of contact would not be considered until he contacts Counselor 1. Thereafter, the Representative indicated that Complainant's file was closed.
As a result of the actions by the EEO District Manager, the Representative, on Complainant's behalf, filed the instant appeal.
The Agency responded to the appeal by providing the Commission a copy of Complainant's prior EEO complaint. The Agency indicated that Complainant did not contact the Office of Resolution Management (ORM) to initiate a complaint. However, the Representative contacted ORM and was told that if Complainant wanted to pursue his complaint, Complainant himself would have to make contact and designate the Representative at that time. When Complainant failed to make contact personally, the Agency closed the inquiry.
Legal Analysis:
the Commission a copy of Complainant's prior EEO complaint. The Agency indicated that Complainant did not contact the Office of Resolution Management (ORM) to initiate a complaint. However, the Representative contacted ORM and was told that if Complainant wanted to pursue his complaint, Complainant himself would have to make contact and designate the Representative at that time. When Complainant failed to make contact personally, the Agency closed the inquiry.
EEOC Regulation 29 C.F.R. §1614.401(a) requires that an appeal cannot be filed by a complainant until the Agency issues a "final action or dismissal of a complaint." We find that there is no final decision issued by the Agency. Therefore, we find that Complainant's appeal is premature. See Cortwright v. Dep't of the Army, EEOC Appeal No. 01A11751 (July 15, 2003)
However, we find that the Agency has improperly closed the instant matter. Complainant indicated that he and the Representative contacted the Agency's EEO Office alleging a claim of retaliatory harassment following the resolution of his prior EEO complaint. Complainant noted that Counselor 1 was made aware that Complainant was represented by the Representative. Despite the notice of representation, Counselor 1 spoke directly to Complainant without the Representative. As such, Complainant asked for a new counselor. Rather than granting such a request, the Agency denied the request and required Complainant and Complainant alone pursue the matter and the Agency closed the inquiry. We find that the Agency should process Complainant's request for a new counselor and provide Complainant with EEO Counseling with the Representative he has chosen to be present with him during the counseling process. We also remind Complainant that he must comply with the Agency's requests including providing the Agency with a notice of representation. Therefore, we find that the Agency erred in closing the matter. As such, we order the Agency to continue processing Complainant's informal complaint. | McKinley P.,1
Complainant,
v.
Peter O'Rourke,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120181803
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) regarding his claim 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.
At the time of events giving rise to this complaint, Complainant's representative (Representative) contacted the Agency's EEO District Manager via email beginning in February 2018. The Representative sought to raise Complainant's claim that he had been subjected to retaliatory harassment following the resolution of his prior EEO complaint pursuant to a settlement agreement in 2016.
The EEO District Manager indicated that Complainant needed to contact a specific EEO Counselor (Counselor 1). However, the Representative requested an alternate Counselor noting that Counselor 1 contacted Complainant without the Representative. The EEO District Manager denied Complainant's request and stated that Complainant must contact Counselor 1. Further, he indicated that the EEO Office would no longer communicate with the Representative until Complainant initiates contact with Counselor 1 and provides the Agency in writing that the Representative is in fact Complainant's representative of record. The EEO District Manager stated that, for purposes of timeliness, Complainant's date of contact would not be considered until he contacts Counselor 1. Thereafter, the Representative indicated that Complainant's file was closed.
As a result of the actions by the EEO District Manager, the Representative, on Complainant's behalf, filed the instant appeal.
The Agency responded to the appeal by providing the Commission a copy of Complainant's prior EEO complaint. The Agency indicated that Complainant did not contact the Office of Resolution Management (ORM) to initiate a complaint. However, the Representative contacted ORM and was told that if Complainant wanted to pursue his complaint, Complainant himself would have to make contact and designate the Representative at that time. When Complainant failed to make contact personally, the Agency closed the inquiry.
EEOC Regulation 29 C.F.R. §1614.401(a) requires that an appeal cannot be filed by a complainant until the Agency issues a "final action or dismissal of a complaint." We find that there is no final decision issued by the Agency. Therefore, we find that Complainant's appeal is premature. See Cortwright v. Dep't of the Army, EEOC Appeal No. 01A11751 (July 15, 2003)
However, we find that the Agency has improperly closed the instant matter. Complainant indicated that he and the Representative contacted the Agency's EEO Office alleging a claim of retaliatory harassment following the resolution of his prior EEO complaint. Complainant noted that Counselor 1 was made aware that Complainant was represented by the Representative. Despite the notice of representation, Counselor 1 spoke directly to Complainant without the Representative. As such, Complainant asked for a new counselor. Rather than granting such a request, the Agency denied the request and required Complainant and Complainant alone pursue the matter and the Agency closed the inquiry. We find that the Agency should process Complainant's request for a new counselor and provide Complainant with EEO Counseling with the Representative he has chosen to be present with him during the counseling process. We also remind Complainant that he must comply with the Agency's requests including providing the Agency with a notice of representation. Therefore, we find that the Agency erred in closing the matter. As such, we order the Agency to continue processing Complainant's informal complaint.
CONCLUSION
As such, Complainant's appeal is DISMISSED as premature. Nonetheless, we REMAND the matter for further processing as set forth in the Order below.
ORDER
Within 15 calendar days of the date this decision is issued, the Agency shall process the remanded informal complaint in accordance with 29 C.F.R. § 1614.105 et seq. See also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chapter 2 (Aug. 5, 2015).
If the informal process fails to resolve the matter, the Agency shall provide Complainant with a Notice of Right to File a Formal Complaint pursuant to 29 C.F.R. §1614.106. If the Agency dismisses the complaint pursuant to 29 C.F.R. § 1614.107(a), the Agency shall issue Complainant a final decision.2 See EEO MD-110 at 5-16. If the Agency accepts the matter for further processing in accordance with 29 C.F.R. § 1614.108, the Agency shall issue its letter of acknowledgement
A copy of the Agency's EEO counseling report and notice of right to file a formal complaint (unless the matter has been resolved) must be sent to the Compliance Officer as referenced below. If Complainant files a formal complaint, the Agency shall provide a copy of the Agency's letter of acknowledgment or its final decision to Complainant will be sent to the Compliance Officer as referenced below.
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 (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 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
August 23, 2018
__________________
Date
2 We remind the Agency that it is well settled that 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).
------------------------------------------------------------
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298 | https://www.eeoc.gov/sites/default/files/decisions/2024_11_15/2024002199.pdf | 2024002199.pdf | PDF | application/pdf | 11,291 | Rachel S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. | January 20, 2024 | Appeal Number: 2024002199
Background:
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency’s Montrose Heights Station in Henrico, Virginia.
Believing that she had been subjected to discrimination, Complainant initiated pre -complaint EEO
counseling on September 28, 2023. On January 2, 2024, Complainant filed a formal complaint
alleging that the Agency subjected her to discrimination on the bases of disability ( physical ), age
(over 40), and in reprisal for prior protected EEO activity when:
1. On May 31, 2023, management sent Complainant to a new job assignment to a
position Complainant could not do.
2. On May 31, 2023, management requested a copy of Complainant’s CA -17, took a
picture of it with her cell phone, and shared it with another member o f management.
The Agency ultimately dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(2) , because
Complainant did not initiate pre -complaint counseling until more than three months after the
alleged discriminatory incidents. In its decision, the Agency reasoned that since Complainant had
previous ly filed EEO complaints, she had constructive knowledge about the EEO complaint
process and should have known 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
personnel action, within 45 days of the effective date of the action. See 29 C.F.R. § 1614.105(a)(1).
In dismissing the complaint, t he Agency also emphasized that the record included an aff idavit
attesting to the fact that an EEO poster was appropriately displayed at Complainant’s facility with
the applicable time limits.
Complainant then filed the instant appeal .
CONTENTIONS ON APPEAL
While the Agency dismissed the complaint for untimely EEO counseling, on appeal, Complainant
argues that she was unable to file her formal EEO complaint in a timely manner due to website
issues. She asserts that when she reported the issue to the EEO Office’s Alternative Dispute
Resolution (ADR) Spec ialist, the ADR Specialist informed her that several other employees
reported similar issues with the website. As such, Complainant requests that we excuse her untimeliness. In addition, Complainant offers various contentions relating to the merits of her
complaint.
The Agency did not respond.
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.
The Commission should construe the complaint in the light most favorable to the complainant and
take the complaint’s allegations as true. Thus, all reasonable inferences that may be drawn from
the complaint’s allegations must be mad e 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.
The Commission should construe the complaint in the light most favorable to the complainant and
take the complaint’s allegations as true. Thus, all reasonable inferences that may be drawn from
the complaint’s allegations must be mad e in favor of the complainant.
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 deter mine 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. Here, t he record reflects that the Agency dismissed the instant complaint for untimely EEO
Counselor contact. The record reveals that the alleged discriminatory events occurred on May 31,
2023, but Complainant did not initiate contact with an EEO Counselor until September 28, 2023, well beyond the forty- five (45) 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. Although Complainant asserts
that she encountered issues with filing her formal complaint , we note that the Agency did not
dismiss her complaint for filing an untimely EEO complaint. Rathe r, the record reflects that the
Agency dismissed the complaint based on her untimely contact with an EEO Counselor . As the
record shows that Complainant has filed several EEO complaints prior to this one , we find that she
had constructive knowledge of the rights and duties of persons seeking redress under EEO laws
and regulations, including regulations about time limits for contacting an EEO Counselor. See
Bruce P. v. Dep’t of Treas. , EEOC Appeal No. 0120170597 (April 11, 2017) , req. for r econs. den.,
EEOC Request No. 0520170369 (Aug. 4, 2017). As Complainant did not timely initiate EEO
contact or provide any persuasive reason to warrant an extension under 29 C.F.R. § 1614.105(a)(2),
we find that the Agency correctly dismissed the complaint. | Rachel S.,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Field Areas and Regions),
Agency.
Appeal No. 2024002199
Agency No. 4B-230-0330-23
DECISION
Complainant filed a n appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency ’s decision dated January 20, 2024, 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., 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. For the r easons set forth
below, we AFFIRM the Agency’s final decision to dismiss Complainant’s complaint.
ISSUE PRESENTED
The issue presented is w hether the Agency’ s final decision properly dismissed Complainant's
complaint for untimely EEO Counselor contact.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency’s Montrose Heights Station in Henrico, Virginia.
Believing that she had been subjected to discrimination, Complainant initiated pre -complaint EEO
counseling on September 28, 2023. On January 2, 2024, Complainant filed a formal complaint
alleging that the Agency subjected her to discrimination on the bases of disability ( physical ), age
(over 40), and in reprisal for prior protected EEO activity when:
1. On May 31, 2023, management sent Complainant to a new job assignment to a
position Complainant could not do.
2. On May 31, 2023, management requested a copy of Complainant’s CA -17, took a
picture of it with her cell phone, and shared it with another member o f management.
The Agency ultimately dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(2) , because
Complainant did not initiate pre -complaint counseling until more than three months after the
alleged discriminatory incidents. In its decision, the Agency reasoned that since Complainant had
previous ly filed EEO complaints, she had constructive knowledge about the EEO complaint
process and should have known 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
personnel action, within 45 days of the effective date of the action. See 29 C.F.R. § 1614.105(a)(1).
In dismissing the complaint, t he Agency also emphasized that the record included an aff idavit
attesting to the fact that an EEO poster was appropriately displayed at Complainant’s facility with
the applicable time limits.
Complainant then filed the instant appeal .
CONTENTIONS ON APPEAL
While the Agency dismissed the complaint for untimely EEO counseling, on appeal, Complainant
argues that she was unable to file her formal EEO complaint in a timely manner due to website
issues. She asserts that when she reported the issue to the EEO Office’s Alternative Dispute
Resolution (ADR) Spec ialist, the ADR Specialist informed her that several other employees
reported similar issues with the website. As such, Complainant requests that we excuse her untimeliness. In addition, Complainant offers various contentions relating to the merits of her
complaint.
The Agency did not respond.
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.
The Commission should construe the complaint in the light most favorable to the complainant and
take the complaint’s allegations as true. Thus, all reasonable inferences that may be drawn from
the complaint’s allegations must be mad e in favor of the complainant.
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 deter mine 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. Here, t he record reflects that the Agency dismissed the instant complaint for untimely EEO
Counselor contact. The record reveals that the alleged discriminatory events occurred on May 31,
2023, but Complainant did not initiate contact with an EEO Counselor until September 28, 2023, well beyond the forty- five (45) 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. Although Complainant asserts
that she encountered issues with filing her formal complaint , we note that the Agency did not
dismiss her complaint for filing an untimely EEO complaint. Rathe r, the record reflects that the
Agency dismissed the complaint based on her untimely contact with an EEO Counselor . As the
record shows that Complainant has filed several EEO complaints prior to this one , we find that she
had constructive knowledge of the rights and duties of persons seeking redress under EEO laws
and regulations, including regulations about time limits for contacting an EEO Counselor. See
Bruce P. v. Dep’t of Treas. , EEOC Appeal No. 0120170597 (April 11, 2017) , req. for r econs. den.,
EEOC Request No. 0520170369 (Aug. 4, 2017). As Complainant did not timely initiate EEO
contact or provide any persuasive reason to warrant an extension under 29 C.F.R. § 1614.105(a)(2),
we find that the Agency correctly dismissed the complaint.
CONCLUSION
Accordingly, the Agency's final decision is AFFIRMED .
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 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 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 pro of 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 da ys 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. Fai lure 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 title d 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
June 20, 2024
Date | [
"Howard v. Dep’ t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999)",
"EEO Counselor. See Bruce P. v. Dep’t of Treas. , EEOC Appeal No. 0120170597 (April 11, 2017)",
"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. § 1614.403(g)",
"2... | [
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299 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120151832.pdf | 0120151832.pdf | PDF | application/pdf | 11,714 | Latonya D. ,1 Complainant, v. Robert D. Snyder , Secretary, Department of Veterans Affairs, Agency. | April 10, 2015 | Appeal Number: 0120151832
Case Facts:
Complainant filed an appeal with this Commission from the Agency's final decision dated
April 10, 2015, dismissing her 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. For the following reasons, the Commission AFFIRMS the Agency’s final
decision.
At the time of the events at issue, Com plainant worked as a GS -6 Therapy Assistant in the
Nursing Service at the Agency’s VA Medical Center in Loma Linda, California.
Complainant filed mixed case appeals with the Merit Systems Protection Board (MSPB)
alleging that the Agency discriminated against her on the basis of disability (back condition).
In MSPB No. SF -0752- 12-0361-I- 1, Complainant challenged her January 23, 2012 removal
from the Agency. In MSPB No. SF -0752- 12-0487-I- 1, Complainant asserted that the Agency
constructively suspended her from May 2011, until her January 2012 removal.
On June 26, 2012, after a hearing, the MSPB Administrative Judge ( AJ) issued an initial
decision on the joined appeals.
Regarding MSPB No. SF -0752- 12-0361-I- 1, the MSPB AJ found no disability discrimination.
First, the MS PB AJ determined that Complainant could not perform the essential functions of
the Therapy Assistant position, with or without reasonable accommodation. Second, the
MSPB AJ determined that Complainant failed to show that there was a v acant, funded position
to which she could have been reassigned as a reasonable accommodation.
Regarding MSPB No. SF -0752- 12-0487- I-l, the MSPB AJ d ismissed the appeal for lack of
jurisdiction. Specifically, t he MSPB AJ found that Complainant failed to show that her
absence from work was involuntary.
Complainant filed a petition with the Commission asking for a review of the June 26, 2012
decision issued by the MSPB. The Commission issued a decision under EEOC Petition No. 0320120065 (October 8, 2014). Regarding MSPB No. S F-0752- 12-0361- I-l (removal), the
Commission affirmed the MSPB's finding of no disability discrimination.
Regarding MSPB No. SF -0752- 12-0487- I-l (constructive suspension), the Commission found
that it had no jurisdiction to review Complainant 's petition. The decision noted the MSPB
dismissed Complainant 's appeal for lack of jurisdiction and did not make any determinations
on allegations of discrimination. The Commission noted where the MSPB denies jurisdiction,
there is li ttle point in continuing to view the matter as a “mixed case.” The decision noted the
case will be considered a “non -mixed” ma tter and processed accordingly. The Commission
found the Agency was required to process Complainant’s allegations of discriminat ion in
MSPB No. SF -0752- 12-0487- I-1 as a “non- mixed” matter. The Agency was instructed to
promptly notify Complainant in writing of her right to contact an EEO Counselor within 45
days of receipt of the notice and to file an EEO complaint. The decision s tated that the date on
which Complainant filed MSPB No. 0752- 12-0487-I-1 shall be deemed to be the date of initial
contact with an EEO Counselor.
Thereafter, Complainant underwent EEO counseling regarding the constructive suspension. On March 5, 2015, Com plainant filed a complaint of discrimination alleging that she was
subjected to discrimination based on disability when from May 11, 2011, through January 23,
2012, she was placed on leave without pay (LWOP).
The Agency issued a final decision on April 10, 2015. The Agency dismissed Complainant’s
complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency noted that Complainant initiated EEO Counselor contact on April 23, 2012, which was
the date Complainant filed M SPB No. SF -0752- 12-0487- I-1. The Agency noted that when the
Commission remanded the case back to the Agency for processing it advised that the date on
which Complainant filed MSPB No. SF -0752- 12-0487- I-1 shall be deemed the date of initial
contact with an EEO Counselor.
The Agency noted that Complainant’s initial contact with an EEO Counselor was April 23,
2012. Thus, the Agency found that anything occurring before March 10, 2012, was beyond the 45- day time limit for initiating timely contact with an E EO Counselor. The Agency stated
that Complainant raised her complaint with an EEO Counselor approximately 90 days after
occurrence. The Agency noted that during a March 30, 2015 conversation with the Case
Manager, Complainant acknowledged she was aware o f the 45 -day time limit because she
remembered taking courses on the computer that explained the EEO complaint process,
including time frames. The Agency noted that Complainant stated the reason for her untimely
filing was that she was concerned about her disability and did not pay much attention to filing
an EEO complaint.
Additionally, the Agency stated that documentation provided by the facility indicates that
Complainant received training on EEO time frames and the complaint process on five dates
with the latest being April 14, 2011. The Agency noted the case file contains evidence of
Complainant’s EEO training that specifically addressed the 45 -day time limit. The Agency
noted that Complainant attended the following training: prevention of workpl ace harassment,
prevention of sexual harassment, and federal employee antidiscrimination and retaliation (No
Fear). Thus, the Agency determined Complainant was fully aware or should have been aware
of the applicable time limits for filing an EEO complaint in a timely manner. The Agency
found no evidence that extenuating circumstances prevented Complainant from filing her
complaint in a timely manner. Moreover, the Agency noted the facility indicated that posters
identifying EEO time lines and procedures have been posted on bulletin boards in high traffic
areas since 2011.
Legal Analysis:
the Commission AFFIRMS the Agency’s final
decision.
At the time of the events at issue, Com plainant worked as a GS -6 Therapy Assistant in the
Nursing Service at the Agency’s VA Medical Center in Loma Linda, California.
Complainant filed mixed case appeals with the Merit Systems Protection Board (MSPB)
alleging that the Agency discriminated against her on the basis of disability (back condition).
In MSPB No. SF -0752- 12-0361-I- 1, Complainant challenged her January 23, 2012 removal
from the Agency. In MSPB No. SF -0752- 12-0487-I- 1, Complainant asserted that the Agency
constructively suspended her from May 2011, until her January 2012 removal.
On June 26, 2012, after a hearing, the MSPB Administrative Judge ( AJ) issued an initial
decision on the joined appeals.
Regarding MSPB No. SF -0752- 12-0361-I- 1, the MSPB AJ found no disability discrimination.
First, the MS PB AJ determined that Complainant could not perform the essential functions of
the Therapy Assistant position, with or without reasonable accommodation. Second, the
MSPB AJ determined that Complainant failed to show that there was a v acant, funded position
to which she could have been reassigned as a reasonable accommodation.
Regarding MSPB No. SF -0752- 12-0487- I-l, the MSPB AJ d ismissed the appeal for lack of
jurisdiction. Specifically, t he MSPB AJ found that Complainant failed to show that her
absence from work was involuntary.
Complainant filed a petition with the Commission asking for a review of the June 26, 2012
decision issued by the MSPB. The Commission issued a decision under EEOC Petition No. 0320120065 (October 8, 2014). Regarding MSPB No. S F-0752- 12-0361- I-l (removal), the
Commission affirmed the MSPB's finding of no disability discrimination.
Regarding MSPB No. SF -0752- 12-0487- I-l (constructive suspension), the Commission found
that it had no jurisdiction to review Complainant 's petition. The decision noted the MSPB
dismissed Complainant 's appeal for lack of jurisdiction and did not make any determinations
on allegations of discrimination. The Commission noted where the MSPB denies jurisdiction,
there is li ttle point in continuing to view the matter as a “mixed case.” The decision noted the
case will be considered a “non -mixed” ma tter and processed
Final Decision:
Accordingly, the Agency’s final decision dismissing Complainant’s complaint is AFFIRMED. | Latonya D. ,1
Complainant,
v.
Robert D. Snyder ,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120151832
Agency No. 200P06052015101200
DECISION
Complainant filed an appeal with this Commission from the Agency's final decision dated
April 10, 2015, dismissing her 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. For the following reasons, the Commission AFFIRMS the Agency’s final
decision.
At the time of the events at issue, Com plainant worked as a GS -6 Therapy Assistant in the
Nursing Service at the Agency’s VA Medical Center in Loma Linda, California.
Complainant filed mixed case appeals with the Merit Systems Protection Board (MSPB)
alleging that the Agency discriminated against her on the basis of disability (back condition).
In MSPB No. SF -0752- 12-0361-I- 1, Complainant challenged her January 23, 2012 removal
from the Agency. In MSPB No. SF -0752- 12-0487-I- 1, Complainant asserted that the Agency
constructively suspended her from May 2011, until her January 2012 removal.
On June 26, 2012, after a hearing, the MSPB Administrative Judge ( AJ) issued an initial
decision on the joined appeals.
Regarding MSPB No. SF -0752- 12-0361-I- 1, the MSPB AJ found no disability discrimination.
First, the MS PB AJ determined that Complainant could not perform the essential functions of
the Therapy Assistant position, with or without reasonable accommodation. Second, the
MSPB AJ determined that Complainant failed to show that there was a v acant, funded position
to which she could have been reassigned as a reasonable accommodation.
Regarding MSPB No. SF -0752- 12-0487- I-l, the MSPB AJ d ismissed the appeal for lack of
jurisdiction. Specifically, t he MSPB AJ found that Complainant failed to show that her
absence from work was involuntary.
Complainant filed a petition with the Commission asking for a review of the June 26, 2012
decision issued by the MSPB. The Commission issued a decision under EEOC Petition No. 0320120065 (October 8, 2014). Regarding MSPB No. S F-0752- 12-0361- I-l (removal), the
Commission affirmed the MSPB's finding of no disability discrimination.
Regarding MSPB No. SF -0752- 12-0487- I-l (constructive suspension), the Commission found
that it had no jurisdiction to review Complainant 's petition. The decision noted the MSPB
dismissed Complainant 's appeal for lack of jurisdiction and did not make any determinations
on allegations of discrimination. The Commission noted where the MSPB denies jurisdiction,
there is li ttle point in continuing to view the matter as a “mixed case.” The decision noted the
case will be considered a “non -mixed” ma tter and processed accordingly. The Commission
found the Agency was required to process Complainant’s allegations of discriminat ion in
MSPB No. SF -0752- 12-0487- I-1 as a “non- mixed” matter. The Agency was instructed to
promptly notify Complainant in writing of her right to contact an EEO Counselor within 45
days of receipt of the notice and to file an EEO complaint. The decision s tated that the date on
which Complainant filed MSPB No. 0752- 12-0487-I-1 shall be deemed to be the date of initial
contact with an EEO Counselor.
Thereafter, Complainant underwent EEO counseling regarding the constructive suspension. On March 5, 2015, Com plainant filed a complaint of discrimination alleging that she was
subjected to discrimination based on disability when from May 11, 2011, through January 23,
2012, she was placed on leave without pay (LWOP).
The Agency issued a final decision on April 10, 2015. The Agency dismissed Complainant’s
complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency noted that Complainant initiated EEO Counselor contact on April 23, 2012, which was
the date Complainant filed M SPB No. SF -0752- 12-0487- I-1. The Agency noted that when the
Commission remanded the case back to the Agency for processing it advised that the date on
which Complainant filed MSPB No. SF -0752- 12-0487- I-1 shall be deemed the date of initial
contact with an EEO Counselor.
The Agency noted that Complainant’s initial contact with an EEO Counselor was April 23,
2012. Thus, the Agency found that anything occurring before March 10, 2012, was beyond the 45- day time limit for initiating timely contact with an E EO Counselor. The Agency stated
that Complainant raised her complaint with an EEO Counselor approximately 90 days after
occurrence. The Agency noted that during a March 30, 2015 conversation with the Case
Manager, Complainant acknowledged she was aware o f the 45 -day time limit because she
remembered taking courses on the computer that explained the EEO complaint process,
including time frames. The Agency noted that Complainant stated the reason for her untimely
filing was that she was concerned about her disability and did not pay much attention to filing
an EEO complaint.
Additionally, the Agency stated that documentation provided by the facility indicates that
Complainant received training on EEO time frames and the complaint process on five dates
with the latest being April 14, 2011. The Agency noted the case file contains evidence of
Complainant’s EEO training that specifically addressed the 45 -day time limit. The Agency
noted that Complainant attended the following training: prevention of workpl ace harassment,
prevention of sexual harassment, and federal employee antidiscrimination and retaliation (No
Fear). Thus, the Agency determined Complainant was fully aware or should have been aware
of the applicable time limits for filing an EEO complaint in a timely manner. The Agency
found no evidence that extenuating circumstances prevented Complainant from filing her
complaint in a timely manner. Moreover, the Agency noted the facility indicated that posters
identifying EEO time lines and procedures have been posted on bulletin boards in high traffic
areas since 2011.
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 effec tive 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 her control from contacting the EEO Counselor within the
time limit, or for other reasons consi dered sufficient by the Agency or Commission.
The record discloses that the alleged discriminatory even t occurred at the latest in January 23,
2012, but that Complainant did not initiate contact with an EEO Counselor until April 23, 2012
(the date Complai nant filed MSPB No. SF -0752- 12-0487- I-1), which is beyond the applicable
45-day limitation period. Upon review, we find Complainant failed to present persuasive
arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
CONCLUSION
Accordingly, the Agency’s final decision dismissing Complainant’s complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
The Commission may, in its discretion, reconsider the decision in this case if the Comp lainant
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 substant ial 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 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 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 act ion,
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 8, 2017
Date | [
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300 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A11564_r.txt | 01A11564_r.txt | TXT | text/plain | 10,673 | William Carroll v. United States Postal Service 01A11564 July 18, 2002 . William Carroll, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. | July 18, 2002 | Appeal Number: 01A11564
Case Facts:
Complainant initiated contact with an EEO Counselor on January 27, 2000.
On May 10, 2000, complainant filed a formal EEO complaint wherein he
alleged that he had been discriminated against on the basis of his
disability (depression), race, and sex, when on June 21, 1991, his
employment with the agency was terminated.
In its decision dated November 29, 2000, the agency dismissed the
complaint pursuant to 29 C.F.R. 1614.107(a)(2), on the grounds that
complainant failed to contact an EEO Counselor in a timely manner.
The agency determined that complainant's EEO contact of January 27,
2000, was approximately nine years after his termination. The agency
noted that complainant did not explain why he waited nearly nine years
to initiate the EEO process.
On appeal, complainant contends that he could not have been expected to
know or meet the time limit for contacting an EEO Counselor. According to
complainant, his ability to attend to his affairs during the relevant
nine year period was affected by his mental illness. Complainant states
that he was a resident at the Comprehensive Addiction Rehabilitation
Program from May 17, 1991 - June 17, 1991, and therefore he could not
respond to the notice of removal dated May 13, 1991.
Complainant states that the notice of removal did not inform him of the
time period for contacting an EEO Counselor.
Legal Analysis:
EEOC Regulation 29 C.F.R. §1613.214(a)(1)(i) required that complaints
of discrimination should have been brought to the attention of the
Equal Employment Opportunity Counselor within thirty (30) calendar days
of an 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
the time limit for contacting an EEO Counselor to forty-five (45) days
for actions occurring on or after October 1, 1992, the effective date
of the new regulations.
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 complainant's contact of an EEO Counselor was untimely
without specific evidence that the poster contained notice of the
time limit. Id.
Complainant claimed that he was discriminated against when on June 21,
1991, his employment with the agency was terminated. Complainant did not
initiate contact with an EEO Counselor until January 27, 2000. However,
we note that the record contains a statement from complainant wherein
he claimed that he was unaware of the time period for contacting an EEO
Counselor. The agency has not addressed whether complainant had actual
or constructive notice of the time limit for contacting an EEO Counselor.
Therefore, we find that a supplemental investigation is necessary in
order to determine whether complainant had actual or constructive notice
of the proper time period for contacting an EEO Counselor.
Final Decision:
Accordingly, the agency's decision to dismiss complainant's complaint on the grounds of untimely EEO Counselor contact is VACATED. | William Carroll v. United States Postal Service
01A11564
July 18, 2002
.
William Carroll,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A11564
Agency No. 1-H-302-0039-00
DECISION
Complainant initiated contact with an EEO Counselor on January 27, 2000.
On May 10, 2000, complainant filed a formal EEO complaint wherein he
alleged that he had been discriminated against on the basis of his
disability (depression), race, and sex, when on June 21, 1991, his
employment with the agency was terminated.
In its decision dated November 29, 2000, the agency dismissed the
complaint pursuant to 29 C.F.R. 1614.107(a)(2), on the grounds that
complainant failed to contact an EEO Counselor in a timely manner.
The agency determined that complainant's EEO contact of January 27,
2000, was approximately nine years after his termination. The agency
noted that complainant did not explain why he waited nearly nine years
to initiate the EEO process.
On appeal, complainant contends that he could not have been expected to
know or meet the time limit for contacting an EEO Counselor. According to
complainant, his ability to attend to his affairs during the relevant
nine year period was affected by his mental illness. Complainant states
that he was a resident at the Comprehensive Addiction Rehabilitation
Program from May 17, 1991 - June 17, 1991, and therefore he could not
respond to the notice of removal dated May 13, 1991.
Complainant states that the notice of removal did not inform him of the
time period for contacting an EEO Counselor.
EEOC Regulation 29 C.F.R. §1613.214(a)(1)(i) required that complaints
of discrimination should have been brought to the attention of the
Equal Employment Opportunity Counselor within thirty (30) calendar days
of an 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
the time limit for contacting an EEO Counselor to forty-five (45) days
for actions occurring on or after October 1, 1992, the effective date
of the new regulations.
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 complainant's contact of an EEO Counselor was untimely
without specific evidence that the poster contained notice of the
time limit. Id.
Complainant claimed that he was discriminated against when on June 21,
1991, his employment with the agency was terminated. Complainant did not
initiate contact with an EEO Counselor until January 27, 2000. However,
we note that the record contains a statement from complainant wherein
he claimed that he was unaware of the time period for contacting an EEO
Counselor. The agency has not addressed whether complainant had actual
or constructive notice of the time limit for contacting an EEO Counselor.
Therefore, we find that a supplemental investigation is necessary in
order to determine whether complainant had actual or constructive notice
of the proper time period for contacting an EEO Counselor.
Accordingly, the agency's decision to dismiss complainant's complaint on
the grounds of untimely EEO Counselor contact is VACATED. This matter
is hereby REMANDED for further processing pursuant to the ORDER below.
ORDER
The agency is ORDERED to conduct a supplemental investigation which
shall include the following actions:
The agency shall supplement the record with an affidavit or other
statement from individuals who have knowledge of the EEO posters,
attesting to whether posters containing the time limit were posted at
complainant's work facility during the period of complainant's employment.
The agency shall also supplement the record with a copy of the relevant
EEO poster if it is available.
The agency shall supplement the record with any other evidence regarding
the issue of when complainant had actual or constructive notice of the
time limit for contacting an EEO Counselor.
The agency shall, within thirty (30) calendar days of the date this
decision becomes final, issue a notice that it is accepting the complaint
for investigation or issue a new decision dismissing the complaint.
A copy of the notice of processing or new agency decision 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 18, 2002
__________________
Date
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"29 C.F.R. § 1614.503(a)",
"29 C.F.R. § 1614.503(g)",
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301 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A10759.txt | 01A10759.txt | TXT | text/plain | 10,568 | 01 . Tomas A. Couret, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency. | September 14, 1999 | Appeal Number: 01A10759
Complaint Allegations:
In his complaint, he raised six instances of non-selection, which he attributed to discrimination on the basis of national origin, age, and disability. He also added national origin, age, and disability as additional bases for the agency's failure to reimburse him for the rescinded suspension. The EEO counselor stated that, when he contacted complainant on August 8, 2000, to inquire why he did not raise these added issues during counseling, complainant responded by saying that he did not want to pursue them at the time. The counselor reported that while complainant was aware of the EEO process, he felt that the EEO process was not fair to him during a previous complaint. He was afraid that management would make his life impossible at work if he pursued these issues while still at the agency.
Legal Analysis:
The Commission accepts the appeal in accordance
with 29 C.F.R. §1614.105.
ISSUE
Whether the agency appropriately dismissed complainant's nonpayment
complaint for mootness and complainant's non-selection complaint for
untimeliness.
BACKGROUND
Complainant and the agency entered into a September 14, 1999 settlement
agreement reducing an August 23-27, 1999 unpaid suspension to a reprimand.
In conjunction with the rescinded suspension, complainant was to be
reimbursed for the unpaid suspension that he served.
Complainant retired from the agency on June 8, 2000. He contacted an EEO
counselor on June 16, 2000, stating that as of June 14, 2000, he still had
not received the reimbursement. He claimed that, by failing to reimburse
him, the agency was retaliating against him for prior EEO activity
(temporary involvement in an unsuccessful 1996 EEO class complaint).
He explained that his delay in contacting an EEO counselor was due to
his fear that the agency would retaliate against him for participating
in the EEO process.
The agency initially made arrangements for complainant to pick up the
reimbursement check on July 5, 2000 and then decided that it would mail
him the check. Complainant received a check in the mail for $573.60,
but it lacked any accompanying information. The agency did not explain
whether the check was for the rescinded suspension or the balance of his
annual leave, and it did not provide any calculations demonstrating how
it arrived at that figure.
Complainant filed a formal complaint on July 13, 2000. In his complaint,
he raised six instances of non-selection, which he attributed to
discrimination on the basis of national origin, age, and disability.
He also added national origin, age, and disability as additional bases
for the agency's failure to reimburse him for the rescinded suspension.
The EEO counselor stated that, when he contacted complainant on August
8, 2000, to inquire why he did not raise these added issues during
counseling, complainant responded by saying that he did not want to
pursue them at the time. The counselor reported that while complainant
was aware of the EEO process, he felt that the EEO process was not
fair to him during a previous complaint. He was afraid that management
would make his life impossible at work if he pursued these issues while
still at the agency.
The agency issued an October 26, 2000 final agency decision, dismissing
the nonpayment complaint as moot and the non-selection complaint as
untimely.
FINDINGS AND ANALYSIS
Nonpayment
We note that complainant contacted the EEO counselor in an attempt
to raise a complaint of reprisal. However, complainant in actuality
raised a claim of breach of settlement. EEO Regulations require a
complainant to contact the EEO director within 30 days of the date
on which the complainant knew or should have known that a breach of
the settlement occurred. See 29 C.F.R. § 1614.504(a). The agency and
the complainant signed the settlement agreement on September 14, 1999.
Clause 1 clearly specified that the five day August 23-27, 1999 suspension
would be rescinded. Thus, it is understood that the recission of the
suspension would entail restoration of complainant's lost pay.
Complainant signed the settlement agreement in September, 1999, but did
not contact an EEO counselor regarding the agency's failure to reimburse
him until June 2000, some nine months later. His reason for waiting
was that he feared reprisal from the agency for participating in the
EEO process. His response indicated that he had been aware of the EEO
complaint processing regulations, including the time limits, for some
time before he actually contacted the EEO counselor. The Commission has
consistently held that fear of reprisal is an insufficient justification
for extending the time limitation for contacting an EEO counselor.
See Parker v. Department of Veterans Affairs, EEOC Request No. 05940436
(February 9, 1995). Moreover, the agency ultimately reimbursed
complainant for the amount in question. Therefore, this complaint is
dismissed under 29 C.F.R. § 1614.504(a).
Non-selections
Before a complainant can file a formal complaint, he must first initiate
EEO counseling pursuant to 29 C.F.R. §1614.105. The agency is required
to dismiss allegations that raise matters not brought to the attention
of an EEO counselor and are not like or related to matters that were
brought to a counselor's attention. See 29 C.F.R. §1614.107 (a)(2).
This provision requires that issues like or related to previously
counseled matters be remanded for counseling themselves when raised at a
later stage of the process. See Quirk v. United States Postal Service,
EEOC Request No. 05940823 (April 10, 1992); Davenport v. Department
of the Treasury, EEOC Request No. 05940631 (February 2, 1995).
In determining whether the incidents described in appellant's complaint
are like or related to incidents raised with an EEO counselor, we must
consider whether the later incidents clarify the earlier incidents and
could have been expected to grow out of the original complaint during
the investigation. See Mitchell v. Department of Veterans Affairs,
EEOC Request No. 05960656 (January 5, 1998); Scher v. United States
Postal Service, EEOC Request No. 05940631 (February 2, 1995).
In the present case, complainant discussed only the agency's claimed
discriminatory failure to reimburse him for the rescinded suspension.
The counselor's record indicates that the sole subject of the counseling
session was the nonpayment. The Commission finds that complainant's
claim regarding the non-selections to be neither like or related to the
claim of nonpayment nor expected to develop from an investigation of it.
Furthermore, complainant does not refute the counselor's account that when
asked why he did not discuss the additional bases for discrimination or
the non-selection claim, complainant responded that he did not feel like
pursuing them at the time. Complainant can not now decide that he wishes
to pursue these additional grounds, disregard Commission regulations,
and raise them in the formal complaint. This claim is dismissed for
failure to contact an EEO counselor pursuant to 29 C.F.R. §1614.105.
Final Decision:
Accordingly, the agency's final decision dismissing complainant's complaint is AFFIRMED. | Tomas A. Couret v. Department of Veterans Affairs
01A10759
08-22-01
.
Tomas A. Couret,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A10759
Agency No. 200R-1831
INTRODUCTION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her 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 Commission accepts the appeal in accordance
with 29 C.F.R. §1614.105.
ISSUE
Whether the agency appropriately dismissed complainant's nonpayment
complaint for mootness and complainant's non-selection complaint for
untimeliness.
BACKGROUND
Complainant and the agency entered into a September 14, 1999 settlement
agreement reducing an August 23-27, 1999 unpaid suspension to a reprimand.
In conjunction with the rescinded suspension, complainant was to be
reimbursed for the unpaid suspension that he served.
Complainant retired from the agency on June 8, 2000. He contacted an EEO
counselor on June 16, 2000, stating that as of June 14, 2000, he still had
not received the reimbursement. He claimed that, by failing to reimburse
him, the agency was retaliating against him for prior EEO activity
(temporary involvement in an unsuccessful 1996 EEO class complaint).
He explained that his delay in contacting an EEO counselor was due to
his fear that the agency would retaliate against him for participating
in the EEO process.
The agency initially made arrangements for complainant to pick up the
reimbursement check on July 5, 2000 and then decided that it would mail
him the check. Complainant received a check in the mail for $573.60,
but it lacked any accompanying information. The agency did not explain
whether the check was for the rescinded suspension or the balance of his
annual leave, and it did not provide any calculations demonstrating how
it arrived at that figure.
Complainant filed a formal complaint on July 13, 2000. In his complaint,
he raised six instances of non-selection, which he attributed to
discrimination on the basis of national origin, age, and disability.
He also added national origin, age, and disability as additional bases
for the agency's failure to reimburse him for the rescinded suspension.
The EEO counselor stated that, when he contacted complainant on August
8, 2000, to inquire why he did not raise these added issues during
counseling, complainant responded by saying that he did not want to
pursue them at the time. The counselor reported that while complainant
was aware of the EEO process, he felt that the EEO process was not
fair to him during a previous complaint. He was afraid that management
would make his life impossible at work if he pursued these issues while
still at the agency.
The agency issued an October 26, 2000 final agency decision, dismissing
the nonpayment complaint as moot and the non-selection complaint as
untimely.
FINDINGS AND ANALYSIS
Nonpayment
We note that complainant contacted the EEO counselor in an attempt
to raise a complaint of reprisal. However, complainant in actuality
raised a claim of breach of settlement. EEO Regulations require a
complainant to contact the EEO director within 30 days of the date
on which the complainant knew or should have known that a breach of
the settlement occurred. See 29 C.F.R. § 1614.504(a). The agency and
the complainant signed the settlement agreement on September 14, 1999.
Clause 1 clearly specified that the five day August 23-27, 1999 suspension
would be rescinded. Thus, it is understood that the recission of the
suspension would entail restoration of complainant's lost pay.
Complainant signed the settlement agreement in September, 1999, but did
not contact an EEO counselor regarding the agency's failure to reimburse
him until June 2000, some nine months later. His reason for waiting
was that he feared reprisal from the agency for participating in the
EEO process. His response indicated that he had been aware of the EEO
complaint processing regulations, including the time limits, for some
time before he actually contacted the EEO counselor. The Commission has
consistently held that fear of reprisal is an insufficient justification
for extending the time limitation for contacting an EEO counselor.
See Parker v. Department of Veterans Affairs, EEOC Request No. 05940436
(February 9, 1995). Moreover, the agency ultimately reimbursed
complainant for the amount in question. Therefore, this complaint is
dismissed under 29 C.F.R. § 1614.504(a).
Non-selections
Before a complainant can file a formal complaint, he must first initiate
EEO counseling pursuant to 29 C.F.R. §1614.105. The agency is required
to dismiss allegations that raise matters not brought to the attention
of an EEO counselor and are not like or related to matters that were
brought to a counselor's attention. See 29 C.F.R. §1614.107 (a)(2).
This provision requires that issues like or related to previously
counseled matters be remanded for counseling themselves when raised at a
later stage of the process. See Quirk v. United States Postal Service,
EEOC Request No. 05940823 (April 10, 1992); Davenport v. Department
of the Treasury, EEOC Request No. 05940631 (February 2, 1995).
In determining whether the incidents described in appellant's complaint
are like or related to incidents raised with an EEO counselor, we must
consider whether the later incidents clarify the earlier incidents and
could have been expected to grow out of the original complaint during
the investigation. See Mitchell v. Department of Veterans Affairs,
EEOC Request No. 05960656 (January 5, 1998); Scher v. United States
Postal Service, EEOC Request No. 05940631 (February 2, 1995).
In the present case, complainant discussed only the agency's claimed
discriminatory failure to reimburse him for the rescinded suspension.
The counselor's record indicates that the sole subject of the counseling
session was the nonpayment. The Commission finds that complainant's
claim regarding the non-selections to be neither like or related to the
claim of nonpayment nor expected to develop from an investigation of it.
Furthermore, complainant does not refute the counselor's account that when
asked why he did not discuss the additional bases for discrimination or
the non-selection claim, complainant responded that he did not feel like
pursuing them at the time. Complainant can not now decide that he wishes
to pursue these additional grounds, disregard Commission regulations,
and raise them in the formal complaint. This claim is dismissed for
failure to contact an EEO counselor pursuant to 29 C.F.R. §1614.105.
CONCLUSION
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
____08-22-01______________
Date
| [
"Parker v. Department of Veterans Affairs, EEOC Request No. 05940436 (February 9, 1995)",
"Quirk v. United States Postal Service, EEOC Request No. 05940823 (April 10, 1992)",
"Davenport v. Department of the Treasury, EEOC Request No. 05940631 (February 2, 1995)",
"Mitchell v. Department of Veterans Affairs, E... | [
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302 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01982001.txt | 01982001.txt | TXT | text/plain | 10,259 | March 18, 1999 | Appeal Number: 01982001
Legal Analysis:
The Commission finds that the agency's December 19, 1997 decision
dismissing appellant's complaint on the basis of untimely EEO counselor
contact, is proper pursuant to the provisions of 29 C.F.R. §1614.107(b).
The record contains a document titled "EEO Management Counselor Request"
which shows that appellant sought EEO counseling on June 23, 1997,
alleging that she had been discriminated against on the basis of race
(Black) concerning her evaluation. The EEO Counselor's Report shows
that appellant sought EEO counseling on July 9, 1997. Appellant filed
her formal complaint of discrimination alleging that she had been
discriminated against on the bases of race (Black) and color (black)
concerning her annual appraisal. Appellant's complaint shows that
she claims the most recent discriminatory event occurred on April 16,
1997, and that she became aware of the alleged discrimination on January
28, 1997.
By letter dated November 13, 1997, the agency asked appellant to explain
why if she was aware of the discriminatory event since January 28,
1997, she did not seek EEO counseling until July 9, 1997. By letter
dated November 24, 1997, appellant informed the agency that although
she received her appraisal on January 28, 1997, she "was too upset to
discuss the rating". Appellant further stated that on April 16, 1997,
her manager acknowledged that she (appellant) deserved a better rating
and that at that time her blood pressure was under control and she was
able to review her file. Finally, appellant stated that she contacted
the EEO counselor "at least two weeks prior to the July 9, 1997 date".
The agency issued a final decision dismissing the complaint on the grounds
of untimely EEO counselor contact after finding that appellant's June
23, 1997 initial contact was well beyond the 45-day time limit of her
January 28, 1997 appraisal and her manager's comment on April 16, 1997.
On appeal, appellant contends that "April 16, 1997, was the wrong date
... the correct date is April 25, 1997 ... June 23, 1997, was not the
first call to the [EEO] office to report the incident ... the first
attempt was made on June 6, 1997".
The record shows that the EEO specialist declared "under penalty of
perjury" that appellant's initial EEO counselor contact took place
on June 23, 1997. A review of the record shows that appellant has
been inconsistent throughout the whole process regarding the dates
of many events in question. On her informal and formal complaints
of discrimination she stated that she became aware of the alleged
discriminatory event on January 28, 1997. She further stated that on
April 16, 1997, her manager told her that she deserved a better rating.
In response to the agency's November 13, 1997 written request for
additional information, appellant stated that on April 16, 1997, she
was told that she deserved a better rating and that she contacted the
EEO counselor two weeks before July 9, 1997. On appeal she once again
provides a new date by alleging that she contacted the EEO office on
June 6, 1997, and that instead of April 16, 1997, the correct date for
her manager's comment was April 25, 1997.
The record shows that appellant admits that she received her appraisal
on January 28, 1997, but that she was too upset to discuss the rating.
She further claims that on April 16, 1997, her manager told her that
she deserved a better rating. Under these circumstances it is of no
consequence whether the comment in question occurred on April 16, 1997,
or April 25, 1997. The fact is that since January 28, 1997, appellant
knew of the alleged discriminatory rating.
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). In the present case,
on January 28, 1997, appellant knew what her annual rating had been.
She claims that she was too upset to discuss her rating. Appellant's
vague statement is not sufficient to toll the 45-day time limit for
initial EEO counselor contact. She should have sought EEO counseling
within 45 days of the January 28, 1997 date. Instead, after appellant's
manager stated to her on April 16, 1997, that she (appellant) deserved
a better rating, she then decided that because her blood pressure was
under control, she could then review her file. She claims, without
sufficient supporting evidence, that she sought EEO counseling on June
6, 1997. We find that the persuasive evidence in the record shows that
she sought EEO counseling on June 23, 1997. Nevertheless, even if we
agree with appellant that she sought EEO counseling on June 6, 1997,
her contact would still be untimely because it did not took place within
45 days of the January 28, 1997 rating.
Final Decision:
Accordingly, the agency's decision dismissing the complaint on the grounds of untimely EEO counselor contact was appropriate and is hereby AFFIRMED. | Caroline L. Caleb v. Department of the Treasury
01982001
March 18, 1999
Caroline L. Caleb, )
Appellant, )
)
v. ) Appeal No. 01982001
) Agency No. TD-98-2013
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
)
DECISION
The Commission finds that the agency's December 19, 1997 decision
dismissing appellant's complaint on the basis of untimely EEO counselor
contact, is proper pursuant to the provisions of 29 C.F.R. §1614.107(b).
The record contains a document titled "EEO Management Counselor Request"
which shows that appellant sought EEO counseling on June 23, 1997,
alleging that she had been discriminated against on the basis of race
(Black) concerning her evaluation. The EEO Counselor's Report shows
that appellant sought EEO counseling on July 9, 1997. Appellant filed
her formal complaint of discrimination alleging that she had been
discriminated against on the bases of race (Black) and color (black)
concerning her annual appraisal. Appellant's complaint shows that
she claims the most recent discriminatory event occurred on April 16,
1997, and that she became aware of the alleged discrimination on January
28, 1997.
By letter dated November 13, 1997, the agency asked appellant to explain
why if she was aware of the discriminatory event since January 28,
1997, she did not seek EEO counseling until July 9, 1997. By letter
dated November 24, 1997, appellant informed the agency that although
she received her appraisal on January 28, 1997, she "was too upset to
discuss the rating". Appellant further stated that on April 16, 1997,
her manager acknowledged that she (appellant) deserved a better rating
and that at that time her blood pressure was under control and she was
able to review her file. Finally, appellant stated that she contacted
the EEO counselor "at least two weeks prior to the July 9, 1997 date".
The agency issued a final decision dismissing the complaint on the grounds
of untimely EEO counselor contact after finding that appellant's June
23, 1997 initial contact was well beyond the 45-day time limit of her
January 28, 1997 appraisal and her manager's comment on April 16, 1997.
On appeal, appellant contends that "April 16, 1997, was the wrong date
... the correct date is April 25, 1997 ... June 23, 1997, was not the
first call to the [EEO] office to report the incident ... the first
attempt was made on June 6, 1997".
The record shows that the EEO specialist declared "under penalty of
perjury" that appellant's initial EEO counselor contact took place
on June 23, 1997. A review of the record shows that appellant has
been inconsistent throughout the whole process regarding the dates
of many events in question. On her informal and formal complaints
of discrimination she stated that she became aware of the alleged
discriminatory event on January 28, 1997. She further stated that on
April 16, 1997, her manager told her that she deserved a better rating.
In response to the agency's November 13, 1997 written request for
additional information, appellant stated that on April 16, 1997, she
was told that she deserved a better rating and that she contacted the
EEO counselor two weeks before July 9, 1997. On appeal she once again
provides a new date by alleging that she contacted the EEO office on
June 6, 1997, and that instead of April 16, 1997, the correct date for
her manager's comment was April 25, 1997.
The record shows that appellant admits that she received her appraisal
on January 28, 1997, but that she was too upset to discuss the rating.
She further claims that on April 16, 1997, her manager told her that
she deserved a better rating. Under these circumstances it is of no
consequence whether the comment in question occurred on April 16, 1997,
or April 25, 1997. The fact is that since January 28, 1997, appellant
knew of the alleged discriminatory rating.
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). In the present case,
on January 28, 1997, appellant knew what her annual rating had been.
She claims that she was too upset to discuss her rating. Appellant's
vague statement is not sufficient to toll the 45-day time limit for
initial EEO counselor contact. She should have sought EEO counseling
within 45 days of the January 28, 1997 date. Instead, after appellant's
manager stated to her on April 16, 1997, that she (appellant) deserved
a better rating, she then decided that because her blood pressure was
under control, she could then review her file. She claims, without
sufficient supporting evidence, that she sought EEO counseling on June
6, 1997. We find that the persuasive evidence in the record shows that
she sought EEO counseling on June 23, 1997. Nevertheless, even if we
agree with appellant that she sought EEO counseling on June 6, 1997,
her contact would still be untimely because it did not took place within
45 days of the January 28, 1997 rating.
Accordingly, the agency's decision dismissing the complaint on the grounds
of untimely EEO counselor contact was appropriate and is hereby 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 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
DATE Ronnie Blumenthal, Director
Office of Federal Operations | [
"Cochran v. United States Postal Service, EEOC Request No. 05920399 (June 18, 1992)"
] | [
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303 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120161951.txt | 0120161951.txt | TXT | text/plain | 11,879 | Mozelle G.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency. | April 11, 2016 | Appeal Number: 0120161951
Background:
At the time of events giving rise to this complaint, Complainant worked as a SSA/Distribution Clerk in the Agency's Hanford Post Office in Hanford, California.
On March 19, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of reprisal for prior protected EEO activity when:
On December 21, 2015, and February 19, 2016, she was only provided with 30 minutes of official time to complete her EEO paperwork even though she requested more time to do so.
Complainant contacted an EEO Counselor in or around December 2015, alleging that she was subjected to discrimination. The counselor sent Complainant the pre-complaint packet containing the EEO Forms to fill out, including PS Form 1110 Request for EEO Time. Complainant submitted a PS Form 1110 to her supervisor ("S1") requesting 4 hours of official time for pre-complaint intake, during which her representative would "advise, accompany and assist" her. S1 denied the request, as well as another request for 2 hours of official time to meet with an EEO counselor. Instead, S1 granted 30 minutes for each of Complainant's requests and told her to let him know the day before if she needed a little more time.
Despite her insistence that she needed more time so that her representative could advise, accompany and assist her by "reviewing documents and explaining complexities that needed to be clarified," S1 maintained that 30 minutes was "reasonable" and would not grant additional time. The previous year, S1 granted Complainant's request for 2 hours of official time, which she used to complete the EEO paperwork with the advice and assistance of her representative, who accompanied her to the EEO counseling meeting. In that instance, Complainant decided not to pursue a formal complaint. Complainant alleges that S1 limited her December 2015 and February 2016 requests to 30 minutes as retaliation "for not actually filing [a Formal Complaint] the first time after [she] took so much [official] time."
Complainant raised the matter with an EEO counselor, and, as it concerned a denial of official time, her allegation was properly forwarded to the appropriate Agency official for a separate inquiry and determination. The Agency dismissed the instant complaint for failure to state a claim under 29 C.F.R. § 1614.107(a)(8) and explained that the matter would be processed separately, per EEOC Regulations. Accordingly, the Agency's regional EEO compliance office issued a letter to Complainant on June 1, 2016, finding 30 minutes to be a reasonable amount of official time for each of Complainant's requests.
Legal Analysis:
EEOC Regulations.
Final Decision:
Accordingly, the Agency's regional EEO compliance office issued a letter to Complainant on June 1, 2016, finding 30 minutes to be a reasonable amount of official time for each of Complainant's requests. ANALYSIS AND FINDINGS Agencies are required to provide official time in accordance with 29 C.F.R. § 1614.605(b). When a complainant is otherwise in pay status, the agency shall consider her to be on "official time," regardless of tour of duty, when her presence is authorized or required by the agency or the Commission during the investigation, informal adjustment, or hearing on a complaint. Id. An agency must establish a process for deciding how much official time it will provide a complainant. EEO-MD-110, Chap. 6 § VII.C, page 6-19. Agencies must inform complainants and their representatives of the process and how to claim or request official time. Id. If the agency denies a request for official time, either in whole or in part, it must include a written statement in the complaint file noting the reasons for the denial. If the agency's denial of official time is made before the complaint is filed, the agency shall provide the complainant with a written explanation for the denial, which it will include in the complaint file if the complainant's subsequently files a complaint. EEO-MD-110, 6-19. 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 Serv., EEOC Request No. 05960179 (Dec. 23, 1996). The Commission held that such a claim should not be processed in accordance with 29 C.F.R. § 1614.108 et seq., since the focus is not on the motivation, but rather on the justification of why the complainant was denied a reasonable amount of official time. Id. We find the Agency properly handled Complainant's allegations as a separate processable claim in accordance with our regulations. Complainant was aware of the procedure to request official time, and the proper form (PS Form 1110) was included with Complainant's EEO Packet, which she received upon contacting an EEO Counselor. The record contains copies of Complainant's completed PS Form 1110s reflecting S1's partial denial of her initial requests for 2 and 4 hours of official time. It also includes the Agency's Management Instruction EL-110-2013-4 which provides guidance for deciding how much official time to provide employees pursuing EEO matters. S1 relied on this instruction to determine that 30 minutes was a "reasonable" amount of official time to grant Complainant. Complainant's EEO Counselor provided her with a copy of Management Instruction EL-110-2013-4 and confirmed that 30 minutes was the average amount of time it took to complete the EEO paperwork. As provided in the June 1, 2016 determination letter, Section C of the instruction, as well as 29 C.F.R. § 1614.605(b) of our own regulations both provide that pre-complaint counseling should take less than 30 minutes. Complainant argues that Management Instruction EL-110-2013-4 "in no way addresses [her] reasonable request for a reasonable amount of time to be accompanied, advised and assisted [by her representative] to identify the very issues and proceed or choose not to." We disagree. All complainants identify issues and make determinations on how to proceed at this phase of the EEO process. Complainant, who is already familiar with the EEO process, fails to explain why it would take her, with the advice and assistance of a representative, 2 to 4 hours to complete paperwork that takes others an average of 30 minutes. Complainant also argues that 30 minutes was unreasonable because it was not enough time for her representative to accompany her. Our regulations and the instruction both provide that complainants may consult their representative by phone. Complainant states that she consulted her representative by phone during EEO counseling. Complainant's preference for in person communication does not make 30 minutes of official time unreasonable. The Commission has the authority to remedy a violation of 29 C.F.R. § 1614.605 without a finding of discrimination. In the instant case, there is sufficient evidence in the record, in conjunction with the Agency's June 1, 2016 determination letter, to establish that 30 minutes was a reasonable amount of official time for both of Complainant's requests. Further review under the Agency's alternate grounds for dismissal per 29 C.F.R. § 1614.107(a)(8) is not necessary. CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. | Mozelle G.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120161951
Agency No. 4F913003616
DECISION
Complainant timely appealed to this Commission from the Agency's April 11, 2016 dismissal of 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
At the time of events giving rise to this complaint, Complainant worked as a SSA/Distribution Clerk in the Agency's Hanford Post Office in Hanford, California.
On March 19, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of reprisal for prior protected EEO activity when:
On December 21, 2015, and February 19, 2016, she was only provided with 30 minutes of official time to complete her EEO paperwork even though she requested more time to do so.
Complainant contacted an EEO Counselor in or around December 2015, alleging that she was subjected to discrimination. The counselor sent Complainant the pre-complaint packet containing the EEO Forms to fill out, including PS Form 1110 Request for EEO Time. Complainant submitted a PS Form 1110 to her supervisor ("S1") requesting 4 hours of official time for pre-complaint intake, during which her representative would "advise, accompany and assist" her. S1 denied the request, as well as another request for 2 hours of official time to meet with an EEO counselor. Instead, S1 granted 30 minutes for each of Complainant's requests and told her to let him know the day before if she needed a little more time.
Despite her insistence that she needed more time so that her representative could advise, accompany and assist her by "reviewing documents and explaining complexities that needed to be clarified," S1 maintained that 30 minutes was "reasonable" and would not grant additional time. The previous year, S1 granted Complainant's request for 2 hours of official time, which she used to complete the EEO paperwork with the advice and assistance of her representative, who accompanied her to the EEO counseling meeting. In that instance, Complainant decided not to pursue a formal complaint. Complainant alleges that S1 limited her December 2015 and February 2016 requests to 30 minutes as retaliation "for not actually filing [a Formal Complaint] the first time after [she] took so much [official] time."
Complainant raised the matter with an EEO counselor, and, as it concerned a denial of official time, her allegation was properly forwarded to the appropriate Agency official for a separate inquiry and determination. The Agency dismissed the instant complaint for failure to state a claim under 29 C.F.R. § 1614.107(a)(8) and explained that the matter would be processed separately, per EEOC Regulations. Accordingly, the Agency's regional EEO compliance office issued a letter to Complainant on June 1, 2016, finding 30 minutes to be a reasonable amount of official time for each of Complainant's requests.
ANALYSIS AND FINDINGS
Agencies are required to provide official time in accordance with 29 C.F.R. § 1614.605(b). When a complainant is otherwise in pay status, the agency shall consider her to be on "official time," regardless of tour of duty, when her presence is authorized or required by the agency or the Commission during the investigation, informal adjustment, or hearing on a complaint. Id. An agency must establish a process for deciding how much official time it will provide a complainant. EEO-MD-110, Chap. 6 § VII.C, page 6-19. Agencies must inform complainants and their representatives of the process and how to claim or request official time. Id. If the agency denies a request for official time, either in whole or in part, it must include a written statement in the complaint file noting the reasons for the denial. If the agency's denial of official time is made before the complaint is filed, the agency shall provide the complainant with a written explanation for the denial, which it will include in the complaint file if the complainant's subsequently files a complaint. EEO-MD-110, 6-19.
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 Serv., EEOC Request No. 05960179 (Dec. 23, 1996). The Commission held that such a claim should not be processed in accordance with 29 C.F.R. § 1614.108 et seq., since the focus is not on the motivation, but rather on the justification of why the complainant was denied a reasonable amount of official time. Id.
We find the Agency properly handled Complainant's allegations as a separate processable claim in accordance with our regulations. Complainant was aware of the procedure to request official time, and the proper form (PS Form 1110) was included with Complainant's EEO Packet, which she received upon contacting an EEO Counselor. The record contains copies of Complainant's completed PS Form 1110s reflecting S1's partial denial of her initial requests for 2 and 4 hours of official time. It also includes the Agency's Management Instruction EL-110-2013-4 which provides guidance for deciding how much official time to provide employees pursuing EEO matters. S1 relied on this instruction to determine that 30 minutes was a "reasonable" amount of official time to grant Complainant. Complainant's EEO Counselor provided her with a copy of Management Instruction EL-110-2013-4 and confirmed that 30 minutes was the average amount of time it took to complete the EEO paperwork. As provided in the June 1, 2016 determination letter, Section C of the instruction, as well as 29 C.F.R. § 1614.605(b) of our own regulations both provide that pre-complaint counseling should take less than 30 minutes.
Complainant argues that Management Instruction EL-110-2013-4 "in no way addresses [her] reasonable request for a reasonable amount of time to be accompanied, advised and assisted [by her representative] to identify the very issues and proceed or choose not to." We disagree. All complainants identify issues and make determinations on how to proceed at this phase of the EEO process. Complainant, who is already familiar with the EEO process, fails to explain why it would take her, with the advice and assistance of a representative, 2 to 4 hours to complete paperwork that takes others an average of 30 minutes. Complainant also argues that 30 minutes was unreasonable because it was not enough time for her representative to accompany her. Our regulations and the instruction both provide that complainants may consult their representative by phone. Complainant states that she consulted her representative by phone during EEO counseling. Complainant's preference for in person communication does not make 30 minutes of official time unreasonable.
The Commission has the authority to remedy a violation of 29 C.F.R. § 1614.605 without a finding of discrimination. In the instant case, there is sufficient evidence in the record, in conjunction with the Agency's June 1, 2016 determination letter, to establish that 30 minutes was a reasonable amount of official time for both of Complainant's requests. Further review under the Agency's alternate grounds for dismissal per 29 C.F.R. § 1614.107(a)(8) is not necessary.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint 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 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 19, 2016
__________________
Date
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304 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A24404_r.txt | 01A24404_r.txt | TXT | text/plain | 6,979 | Kelly Bacot v. Department of Defense 01A24404 July 29, 2003 . Kelly Bacot, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Agency. | July 29, 2003 | Appeal Number: 01A24404
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. | Kelly Bacot v. Department of Defense
01A24404
July 29, 2003
.
Kelly Bacot,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
Agency.
Appeal No. 01A24404
Agency No. GE-FY01-07
Hearing No. 100-A2-7542X
DECISION
Complainant initially contacted the agency's EEO Office on June 15,
2000. During this EEO contact, complainant raised the issue that she
had been continually harassed by parents and administrators at the
agency's school at the Ramstein, Germany Air Base. Complainant stated
that the working conditions are terrible and that the school principal
is unprofessional and has poor leadership skills. On March 22, 2001,
complainant initiated contact with the agency's EEO Office concerning
her August 11, 2000 termination from her teacher position. On May 7,
2001, complainant filed a formal EEO complaint wherein she claimed that
she was discriminated against on the basis of her sex (female) when she
was terminated from her position, effective August 11, 2000.
By decision dated January 30, 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 March 22, 2001, with regard to her termination was after
the expiration of the 45-day time limit for contacting an EEO Counselor.
The agency further determined that complainant had constructive notice of
the 45-day limitation period in light of the fact that such information
was prominently posted in the teachers' lounges where complainant
worked and in the staff handbook. However, prior to the dismissal,
complainant's request for a hearing before an EEOC Administrative Judge
(AJ) was granted. On May 29, 2002, the AJ dismissed the complaint on
the grounds of untimely EEO contact pursuant to the agency's Motion
for Dismissal. The AJ found that complainant's EEO contact on June
15, 2000, was not like or related to her termination, nor part of a
continuing violation. The AJ found that the instant complaint does not
state a claim of harassment or constructive discharge as complainant was
actually discharged. Finally, the AJ stated that the agency produced
copies of notice of EEO rights that were placed on the bulletin boards
of the faculty lounges, as well as information contained in the staff
handbook stating the location of EEO-related notices. By final order
dated July 15, 2002, the agency adopted the AJ's decision.
The record reveals that complainant's EEO contact with regard to her
termination was clearly more than 45 days after the effective date
of her termination. We find that although complainant previously
contacted an EEO Counselor on June 15, 2000, that contact was prior
to the termination, and not sufficiently related to the termination.
We find that the termination was of such significance that complainant's
seven month delay in contacting an EEO Counselor can not be justified.
We further find that the agency has established that complainant had
constructive notice of the 45-day limitation period based on the posting
of relevant EEO information on the bulletin boards in the faculty lounges.
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
July 29, 2003
__________________
Date
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305 | https://www.eeoc.gov/sites/default/files/decisions/2024_05_22/2024001104.pdf | 2024001104.pdf | PDF | application/pdf | 18,177 | Mitchell H. ,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. | October 20, 2023 | Appeal Number: 2024001104
Background:
During the period at issue , Complainant worked as a Mail Handler at the Agency’s facility in
Brooklyn, New York. The Agency allegedly did not properly deposit his paychecks for January 14 and 28, 2003, resulting in Complai nant not getting paid. But he allegedly did not realize this
error until March 29, 2003, and contacted an EEO counselor on July 3, 2023. He tried to resolve the matter informally, but when those efforts failed, he filed a formal complaint on October 11, 2023, alleging age discrimination when the Agency did not deposit his paychecks for January 14, 2023, and January 28, 2023. The Agency dismissed the complaint for untimely EEO Counselor contact. The Agency reasoned that Complainant suspected discrimination around March 29, 2023, but did not initia te EEO
contact until July 3, 2023, beyond the applicable 45 -day time limit.
Furthermore, the Agency determined that Complainant had constructive knowledge of the 45-
day time limit because: (1) he had previously f iled EEO complaints that were dismissed fo r
untimely EEO Counselor contact ; and (2) Complainant’s supervisor averred that Complainant’s
facility displayed an EEO poster.
Complainant appealed .
CONTENTIONS ON APPEAL
Complainant requests that we reverse th e Agency’s final decision , dismissing his complaint for
untimely EEO Counselor contact. He asserts that he was not aware of the applicable time limit
and that this was his first EEO case. W hen he initially discovered the pay issue , he contacted the
postal inspection service and contacted the uni on on March 29, 2023, to file a grievance.
The Agency did not submit a statement or brief in opposition to Complainant’s appeal.
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.
3 2024001104
Legal Analysis:
the Commission’s website.
2 2024001104
BACKGROUND
During the period at issue , Complainant worked as a Mail Handler at the Agency’s facility in
Brooklyn, New York. The Agency allegedly did not properly deposit his paychecks for January 14 and 28, 2003, resulting in Complai nant not getting paid. But he allegedly did not realize this
error until March 29, 2003, and contacted an EEO counselor on July 3, 2023. He tried to resolve the matter informally, but when those efforts failed, he filed a formal complaint on October 11, 2023, alleging age discrimination when the Agency did not deposit his paychecks for January 14, 2023, and January 28, 2023. The Agency dismissed the complaint for untimely EEO Counselor contact. The Agency reasoned that Complainant suspected discrimination around March 29, 2023, but did not initia te EEO
contact until July 3, 2023, beyond the applicable 45 -day time limit.
Furthermore, the Agency determined that Complainant had constructive knowledge of the 45-
day time limit because: (1) he had previously f iled EEO complaints that were dismissed fo r
untimely EEO Counselor contact ; and (2) Complainant’s supervisor averred that Complainant’s
facility displayed an EEO poster.
Complainant appealed .
CONTENTIONS ON APPEAL
Complainant requests that we reverse th e Agency’s final decision , dismissing his complaint for
untimely EEO Counselor contact. He asserts that he was not aware of the applicable time limit
and that this was his first EEO case. W hen he initially discovered the pay issue , he contacted the
postal inspection service and contacted the uni on on March 29, 2023, to file a grievance.
The Agency did not submit a statement or brief in opposition to Complainant’s appeal.
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.
3 2024001104
ANALYSIS
A. The regulatory time deadline for contacting an EEO counselor and permissible ways to
extend that dead line
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 c ase 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 li mitation per iod 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 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 consi dered suf ficient by the agency or the Commission. See 29 C.F.R. § 1614.604(c) .
Here, Complainant argues that his failure to meet the 45 -day time deadline was due to his lack of
knowledge about the time limit.
B. The Agency did not provide specific evidence that the work facility displayed an EE O
poster containing the applicable time limit
Upon review, the Commission determines that Complainant has provided a sufficient reason, lack of actual knowledge of the time deadline, to extend the 45- day time limit f or contacting an
EEO counselor, such that his complaint should not be dismissed. We find inadequate the Agency’s attempt to impute constructive knowledge about the applicable
time limit to Complainant. First, Complainant asserts that this wa s his first E EO case, and the
record is devoid of evidence to support the Agency’s contention that Complainant filed prior
EEO complaints and/or was personally informed of the applicable time limit. Given the
conflicting accounts from the parties and the lack of suppor ting evidence, we must side with
Complainant here.
Second, the Commission has previously held that when an agency attempts to use the presence of
EEO posters to impute constructive knowledge to a complainant, the agency may not rely on a generalized affir mation that it posted EEO information. Rather, it must submit specific evidence
that the poster cont ained notice of the appli cable time limits. Pride v. U.S. Postal Serv., EEOC
Appeal No. 05930134 (Aug. 19, 1993).
4 2024001104
Here, the only evidence the Agency provided was an affidavit from the Supervisor, Distribution Operations (Supervisor). The Supervisor averred that, since January 2023, EEO Poster 72 was on
display at two locations of Complainant’s work facility. Complaint File at 36.
2 We find that this
affidav it alone is insufficient to impute constructive notice to Complainant because i t constitutes
only a generalized reference to EEO posters . For example, t he Supervisor did not specify that the
posters contained the applicable time limit and how to initiate E EO counselor contact. Complaint
File at 36. But more crucially, the Agency fail ed to provide copies of the posters on display in
the record.
In similar situations where agencies provided only generalized references to EEO posters, the Commission has reversed those complaint dismissals for untimeliness . See, e.g., Vickey S. v.
U.S. Postal Serv ., EEOC Appeal No 0120162558 (Dec. 28, 2016) (reversing Agency’s dismissal
for untimely EEO Counselor contact reasoning that the EEO Counselor’s report referencing that Poster 72 was on display is insufficient to establish constructive notice be cause it lacks specific
evidence that the poster contained notice of the applicable time limit); Derian v. U.S. Postal
Serv., EEOC Appeal No. 01A11218 (June 18, 2001) (reversing the agency’s dismissal for
untimely EEO Counselor contact reasoning that the agency’s mere reference to Poster 72 in an affidavit submitted by a supervisor, without inclusion of whether the poster contained notice of
the applicable time limit, does not m eet the requisite burden) ; req. for recons. den., EEOC
Request No. 05A10923 (Dec. 18, 2001).
Consistent with our prior decisions , we determine that the Agency erred in dismissing this
complaint for fai lure to timely contact an EEO counselor. | Mitchell H. ,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Field Areas and Regions),
Agency.
Appeal No. 2024001104
Agency No. 1C-631-0264-23
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated October 20, 2023, dismissing his
complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the reasons presented b elow, w e reverse the Agency’s final decision dismissing Complainant’s complaint
and remand this matter to the Agency for further processing in accordanc e with the Order below.
ISSUE PRESENTED
Complainant did not meet the 45- day deadline for contacting an Equal Employment Opportunity
(EEO) counselor because he asserted , he was unaware of the relevant time limit. But he may still
be deemed to have constructive knowledge of the time limit, if the Agency provides specific evidence that his workplace contained a visible poster with the applicable time limit.
Complainant’s supervisor only averred that Complainant’s work facility displayed two EEO posters. Did the supervisor’s testimony alone provide enough evidence to impute constructive knowledge of the time lim it to Complainant?
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 2024001104
BACKGROUND
During the period at issue , Complainant worked as a Mail Handler at the Agency’s facility in
Brooklyn, New York. The Agency allegedly did not properly deposit his paychecks for January 14 and 28, 2003, resulting in Complai nant not getting paid. But he allegedly did not realize this
error until March 29, 2003, and contacted an EEO counselor on July 3, 2023. He tried to resolve the matter informally, but when those efforts failed, he filed a formal complaint on October 11, 2023, alleging age discrimination when the Agency did not deposit his paychecks for January 14, 2023, and January 28, 2023. The Agency dismissed the complaint for untimely EEO Counselor contact. The Agency reasoned that Complainant suspected discrimination around March 29, 2023, but did not initia te EEO
contact until July 3, 2023, beyond the applicable 45 -day time limit.
Furthermore, the Agency determined that Complainant had constructive knowledge of the 45-
day time limit because: (1) he had previously f iled EEO complaints that were dismissed fo r
untimely EEO Counselor contact ; and (2) Complainant’s supervisor averred that Complainant’s
facility displayed an EEO poster.
Complainant appealed .
CONTENTIONS ON APPEAL
Complainant requests that we reverse th e Agency’s final decision , dismissing his complaint for
untimely EEO Counselor contact. He asserts that he was not aware of the applicable time limit
and that this was his first EEO case. W hen he initially discovered the pay issue , he contacted the
postal inspection service and contacted the uni on on March 29, 2023, to file a grievance.
The Agency did not submit a statement or brief in opposition to Complainant’s appeal.
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.
3 2024001104
ANALYSIS
A. The regulatory time deadline for contacting an EEO counselor and permissible ways to
extend that dead line
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 c ase 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 li mitation per iod 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 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 consi dered suf ficient by the agency or the Commission. See 29 C.F.R. § 1614.604(c) .
Here, Complainant argues that his failure to meet the 45 -day time deadline was due to his lack of
knowledge about the time limit.
B. The Agency did not provide specific evidence that the work facility displayed an EE O
poster containing the applicable time limit
Upon review, the Commission determines that Complainant has provided a sufficient reason, lack of actual knowledge of the time deadline, to extend the 45- day time limit f or contacting an
EEO counselor, such that his complaint should not be dismissed. We find inadequate the Agency’s attempt to impute constructive knowledge about the applicable
time limit to Complainant. First, Complainant asserts that this wa s his first E EO case, and the
record is devoid of evidence to support the Agency’s contention that Complainant filed prior
EEO complaints and/or was personally informed of the applicable time limit. Given the
conflicting accounts from the parties and the lack of suppor ting evidence, we must side with
Complainant here.
Second, the Commission has previously held that when an agency attempts to use the presence of
EEO posters to impute constructive knowledge to a complainant, the agency may not rely on a generalized affir mation that it posted EEO information. Rather, it must submit specific evidence
that the poster cont ained notice of the appli cable time limits. Pride v. U.S. Postal Serv., EEOC
Appeal No. 05930134 (Aug. 19, 1993).
4 2024001104
Here, the only evidence the Agency provided was an affidavit from the Supervisor, Distribution Operations (Supervisor). The Supervisor averred that, since January 2023, EEO Poster 72 was on
display at two locations of Complainant’s work facility. Complaint File at 36.
2 We find that this
affidav it alone is insufficient to impute constructive notice to Complainant because i t constitutes
only a generalized reference to EEO posters . For example, t he Supervisor did not specify that the
posters contained the applicable time limit and how to initiate E EO counselor contact. Complaint
File at 36. But more crucially, the Agency fail ed to provide copies of the posters on display in
the record.
In similar situations where agencies provided only generalized references to EEO posters, the Commission has reversed those complaint dismissals for untimeliness . See, e.g., Vickey S. v.
U.S. Postal Serv ., EEOC Appeal No 0120162558 (Dec. 28, 2016) (reversing Agency’s dismissal
for untimely EEO Counselor contact reasoning that the EEO Counselor’s report referencing that Poster 72 was on display is insufficient to establish constructive notice be cause it lacks specific
evidence that the poster contained notice of the applicable time limit); Derian v. U.S. Postal
Serv., EEOC Appeal No. 01A11218 (June 18, 2001) (reversing the agency’s dismissal for
untimely EEO Counselor contact reasoning that the agency’s mere reference to Poster 72 in an affidavit submitted by a supervisor, without inclusion of whether the poster contained notice of
the applicable time limit, does not m eet the requisite burden) ; req. for recons. den., EEOC
Request No. 05A10923 (Dec. 18, 2001).
Consistent with our prior decisions , we determine that the Agency erred in dismissing this
complaint for fai lure to timely contact an EEO counselor.
CONCLUSION
We REVERSE the Agency’s final decision dismissing the formal complaint and we REMAND
this matter to the Agency for further processing in accordance with the ORDER below.
ORDER (E0 224)
The Agency is ordered to process the remanded claims in accordance wi th 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 Age ncy shall
issue to Complainant a copy of the investigat ive 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 decisio n without a hearing, the Agency shall issue a final decision within sixty (60) days of
receipt of Complainant’s request.
2 Our citations to the complaint file reference the pdf page number of the document before us on
appeal.
5 2024001104
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 r equest for a
hearing, or a copy of the final agency dec ision (“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 (FedSEP) supporting documents in the digital format required by the Commission, r eferencing 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 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 admi nistrative 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 c ause 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, rec onsider this appellate decision if Complainant or the
Agency submit s 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
6 2024001104
2. The appellate decision will have a substantial impact on the polic ies, 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 § V II.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 the ir request 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, 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). Eit her 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 ci rcumstances 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 Agenc y 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
recei ve 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 a s 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.
7 2024001104
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 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 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
April 23, 2024
Date | [
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Case Facts:
On May 21, 1998, appellant filed a timely appeal of an April 13, 1998
final agency decision, received by her on April 22, 1998, which dismissed
six of eight allegations of her complaint for failure to contact an EEO
Counselor in a timely manner.
In her December 8, 1997 complaint, appellant alleged that she was
discriminated against on the basis of her physical disability and
subjected to sexual harassment on the basis of her sex. In its final
decision, the agency accepted the following allegations: (1) on December
5, 1997, appellant was presented with a performance plan that contained
incorrect entries and typing errors; and (2) appellant determined that the
work hours of other similarly situated employees were not cut from 32 to
16 hours per pay period on November 12, 1997. The agency identified the
dismissed allegations as whether appellant was discriminated against when:
(a) on December 6, 1996 and on undetermined dates in March 1997 and
August 1997, the Commissary Officer refused to process her workers'
compensation claims;
(b) on an undetermined date in November 1995, the Commissary Officer
informed appellant that she was a "non-essential, injured and a liability"
and "not to get smart and pretty;"
(c) on an undetermined date in December 1996, the Deputy Commissary
Officer stated that "unless you are young and attractive, the Commissary
Officer will not do anything for you;"
(d) on an undetermined date in August 1996, the Commissary Officer
told appellant "you don't stand a prayer if you pursue this [workers']
compensation claim;"
(e) on an undetermined date in August 1996, the Deputy Commissary Officer
threatened appellant by stating that "it could get worse, we may cut
your hours even more;"
(f) since December 1995, appellant has been continuously overlooked and
denied advancement, work awards, cash awards or recognition.
In dismissing the six allegations, the agency noted that the EEO contact
was untimely and appellant failed to provide a reasonable explanation
for her untimely contact, despite the agency's December 15, 1997 letter
and a January 2, 1998 telephone call to appellant from the EEO Specialist
requesting explanations regarding the untimely EEO contact.
The record contains the agency's December 15, 1997 letter to appellant
wherein the agency requested explanations concerning appellant's
allegedly untimely EEO contact for allegations (a), (b), (c), (d)
and accepted allegation (2). In her response to the agency's letter,
appellant stated that she was not aware that she should have filed an EEO
complaint and that she was "relatively unschooled" regarding the rules
and regulations in EEO matters. In addition, in specific response to a
question concerning allegation (a), appellant stated, without elaboration,
that she had sought counseling through the agency regarding allegation(a).
Appellant also indicated in her response that she did not contact an
EEO Counselor because she felt intimidated.
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 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. EEOC Regulation
29 C.F.R. §1614.604(c) provides that the time limits in Part 1614 are
subject to waiver, estoppel and equitable tolling.
Upon review, the Commission is unable to determine the propriety of the
agency's dismissal. Although in its response to appellant's appeal the
agency stated that an EEO poster with the applicable time limitations
was on display on an employee bulletin board and that appellant
had constructive notice of the time limitations, the agency has not
provided any supporting documentation that during the relevant time
period, appellant had actual or constructive notice of the applicable
limitation period for contacting an EEO Counselor. Without specific
evidence that notices or posters containing the 45-day time limit
were conspicuously posted or specific evidence that appellant was
otherwise aware of the time limit during the relevant time period, 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
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);
Pride v. U.S. Postal Service, EEOC Request No. 05930134 (August 19,
1993)(agency's generalized affirmation that it posted EEO information
is not sufficient evidence upon which it can conclude that appellant's
contact of an EEO Counselor was untimely).
In addition, the Commission notes that in its December 15, 1997 letter,
the agency did not request any information on the timeliness of EEO
contact regarding allegations (e) or (f) nor did the agency address
appellant's claim regarding allegation (a) that she had sought counseling
from the agency. The agency also has not provided any documentation
regarding the results of the January 2, 1998 telephone call to appellant.
It is well settled 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). Also, it appears that regarding allegation (f) appellant
may be alleging recurrent incidents of discrimination. As such, the
agency is obligated to initiate an inquiry into whether any allegations
untimely raised fall within the ambit of the continuing violation theory.
Guy v. Department of Energy, EEOC Request No. 05930703 (December 16,
1993) (citing Williams). | Dorothy E. Bobowicz, )
Appellant, )
)
v. ) Appeal No. 01984682
) Agency No. 98EASNK006
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Commissary Agency), )
Agency. )
______________________________)
DECISION
On May 21, 1998, appellant filed a timely appeal of an April 13, 1998
final agency decision, received by her on April 22, 1998, which dismissed
six of eight allegations of her complaint for failure to contact an EEO
Counselor in a timely manner.
In her December 8, 1997 complaint, appellant alleged that she was
discriminated against on the basis of her physical disability and
subjected to sexual harassment on the basis of her sex. In its final
decision, the agency accepted the following allegations: (1) on December
5, 1997, appellant was presented with a performance plan that contained
incorrect entries and typing errors; and (2) appellant determined that the
work hours of other similarly situated employees were not cut from 32 to
16 hours per pay period on November 12, 1997. The agency identified the
dismissed allegations as whether appellant was discriminated against when:
(a) on December 6, 1996 and on undetermined dates in March 1997 and
August 1997, the Commissary Officer refused to process her workers'
compensation claims;
(b) on an undetermined date in November 1995, the Commissary Officer
informed appellant that she was a "non-essential, injured and a liability"
and "not to get smart and pretty;"
(c) on an undetermined date in December 1996, the Deputy Commissary
Officer stated that "unless you are young and attractive, the Commissary
Officer will not do anything for you;"
(d) on an undetermined date in August 1996, the Commissary Officer
told appellant "you don't stand a prayer if you pursue this [workers']
compensation claim;"
(e) on an undetermined date in August 1996, the Deputy Commissary Officer
threatened appellant by stating that "it could get worse, we may cut
your hours even more;"
(f) since December 1995, appellant has been continuously overlooked and
denied advancement, work awards, cash awards or recognition.
In dismissing the six allegations, the agency noted that the EEO contact
was untimely and appellant failed to provide a reasonable explanation
for her untimely contact, despite the agency's December 15, 1997 letter
and a January 2, 1998 telephone call to appellant from the EEO Specialist
requesting explanations regarding the untimely EEO contact.
The record contains the agency's December 15, 1997 letter to appellant
wherein the agency requested explanations concerning appellant's
allegedly untimely EEO contact for allegations (a), (b), (c), (d)
and accepted allegation (2). In her response to the agency's letter,
appellant stated that she was not aware that she should have filed an EEO
complaint and that she was "relatively unschooled" regarding the rules
and regulations in EEO matters. In addition, in specific response to a
question concerning allegation (a), appellant stated, without elaboration,
that she had sought counseling through the agency regarding allegation(a).
Appellant also indicated in her response that she did not contact an
EEO Counselor because she felt intimidated.
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 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. EEOC Regulation
29 C.F.R. §1614.604(c) provides that the time limits in Part 1614 are
subject to waiver, estoppel and equitable tolling.
Upon review, the Commission is unable to determine the propriety of the
agency's dismissal. Although in its response to appellant's appeal the
agency stated that an EEO poster with the applicable time limitations
was on display on an employee bulletin board and that appellant
had constructive notice of the time limitations, the agency has not
provided any supporting documentation that during the relevant time
period, appellant had actual or constructive notice of the applicable
limitation period for contacting an EEO Counselor. Without specific
evidence that notices or posters containing the 45-day time limit
were conspicuously posted or specific evidence that appellant was
otherwise aware of the time limit during the relevant time period, 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
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);
Pride v. U.S. Postal Service, EEOC Request No. 05930134 (August 19,
1993)(agency's generalized affirmation that it posted EEO information
is not sufficient evidence upon which it can conclude that appellant's
contact of an EEO Counselor was untimely).
In addition, the Commission notes that in its December 15, 1997 letter,
the agency did not request any information on the timeliness of EEO
contact regarding allegations (e) or (f) nor did the agency address
appellant's claim regarding allegation (a) that she had sought counseling
from the agency. The agency also has not provided any documentation
regarding the results of the January 2, 1998 telephone call to appellant.
It is well settled 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). Also, it appears that regarding allegation (f) appellant
may be alleging recurrent incidents of discrimination. As such, the
agency is obligated to initiate an inquiry into whether any allegations
untimely raised fall within the ambit of the continuing violation theory.
Guy v. Department of Energy, EEOC Request No. 05930703 (December 16,
1993) (citing Williams). Accordingly, the dismissed allegations will
be remanded to the agency for a supplemental investigation.
As a final matter, appellant is hereby advised that failure to respond
to or address the agency's written request for information can result
in the dismissal of her complaint pursuant to 29 C.F.R. §1614.107(g).
The agency's decision dismissing allegations (a) to (f) is VACATED and
the dismissed allegations are REMANDED to the agency for a supplemental
investigation regarding the issue of timeliness of EEO contact.
ORDER
The agency is ORDERED to take the following actions:
1. The agency shall conduct a supplemental investigation on the issue
of the timeliness of EEO contact, including, but not limited to, whether
appellant had actual or constructive knowledge of the time limit for
contacting an EEO Counselor more than 45 days before she contacted an
EEO Counselor. The agency shall supplement the record with copies of
the EEO posters (or affidavits describing the posters if the posters are
unavailable) and any other evidence showing that appellant was informed,
or should have known, of the time limits for contacting an EEO Counselor.
2. The agency shall determine in its supplemental investigation whether
appellant contacted an EEO Counselor previously as suggested in her
response to the agency's December 15, 1997 letter. If so, appellant
shall be requested to provide the dates, names, and places of alleged
EEO contacts prior to November 17, 1997 and the nature of each of
those alleged contacts. Thereafter, if appropriate, 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.
3. The agency shall also make an inquiry regarding whether appellant
is alleging a continuing violation in allegation (f) and appellant shall
provide dates when the alleged denials occurred.
4. 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 report of supplemental investigation with supporting
documentation, notice of processing 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:
August 12, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
| [
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"Santiago v. U.S. Postal Service, EEOC Request No. 05950272 (July 6, 1995)",
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307 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01984682.txt | 01984682.txt | TXT | text/plain | 16,588 | August 12, 1999 | Appeal Number: 01984682
Case Facts:
On May 21, 1998, appellant filed a timely appeal of an April 13, 1998
final agency decision, received by her on April 22, 1998, which dismissed
six of eight allegations of her complaint for failure to contact an EEO
Counselor in a timely manner.
In her December 8, 1997 complaint, appellant alleged that she was
discriminated against on the basis of her physical disability and
subjected to sexual harassment on the basis of her sex. In its final
decision, the agency accepted the following allegations: (1) on December
5, 1997, appellant was presented with a performance plan that contained
incorrect entries and typing errors; and (2) appellant determined that
the work hours of other similarly situated employees were not cut from 32
to 16 hours per pay period on November 12, 1997. The agency identified
the dismissed allegations as whether appellant was discriminated against
when:
(a) on December 6, 1996 and on undetermined dates in March 1997 and
August 1997, the Commissary Officer refused to process her workers'
compensation claims;
(b) on an undetermined date in November 1995, the Commissary Officer
informed appellant that she was a "non-essential, injured and a liability"
and "not to get smart and pretty;"
(c) on an undetermined date in December 1996, the Deputy Commissary
Officer stated that "unless you are young and attractive, the Commissary
Officer will not do anything for you;"
(d) on an undetermined date in August 1996, the Commissary Officer
told appellant "you don't stand a prayer if you pursue this [workers']
compensation claim;"
(e) on an undetermined date in August 1996, the Deputy Commissary Officer
threatened appellant by stating that "it could get worse, we may cut
your hours even more;"
(f) since December 1995, appellant has been continuously overlooked and
denied advancement, work awards, cash awards or recognition.
In dismissing the six allegations, the agency noted that the EEO contact
was untimely and appellant failed to provide a reasonable explanation
for her untimely contact, despite the agency's December 15, 1997 letter
and a January 2, 1998 telephone call to appellant from the EEO Specialist
requesting explanations regarding the untimely EEO contact.
The record contains the agency's December 15, 1997 letter to appellant
wherein the agency requested explanations concerning appellant's
allegedly untimely EEO contact for allegations (a), (b), (c), (d)
and accepted allegation (2). In her response to the agency's letter,
appellant stated that she was not aware that she should have filed an EEO
complaint and that she was "relatively unschooled" regarding the rules
and regulations in EEO matters. In addition, in specific response to a
question concerning allegation (a), appellant stated, without elaboration,
that she had sought counseling through the agency regarding allegation(a).
Appellant also indicated in her response that she did not contact an
EEO Counselor because she felt intimidated.
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 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. EEOC Regulation
29 C.F.R. §1614.604(c) provides that the time limits in Part 1614 are
subject to waiver, estoppel and equitable tolling.
Upon review, the Commission is unable to determine the propriety of the
agency's dismissal. Although in its response to appellant's appeal the
agency stated that an EEO poster with the applicable time limitations
was on display on an employee bulletin board and that appellant
had constructive notice of the time limitations, the agency has not
provided any supporting documentation that during the relevant time
period, appellant had actual or constructive notice of the applicable
limitation period for contacting an EEO Counselor. Without specific
evidence that notices or posters containing the 45-day time limit
were conspicuously posted or specific evidence that appellant was
otherwise aware of the time limit during the relevant time period, 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
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);
Pride v. U.S. Postal Service, EEOC Request No. 05930134 (August 19,
1993)(agency's generalized affirmation that it posted EEO information
is not sufficient evidence upon which it can conclude that appellant's
contact of an EEO Counselor was untimely).
In addition, the Commission notes that in its December 15, 1997 letter,
the agency did not request any information on the timeliness of EEO
contact regarding allegations (e) or (f) nor did the agency address
appellant's claim regarding allegation (a) that she had sought counseling
from the agency. The agency also has not provided any documentation
regarding the results of the January 2, 1998 telephone call to appellant.
It is well settled 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). Also, it appears that regarding allegation (f) appellant
may be alleging recurrent incidents of discrimination. As such, the
agency is obligated to initiate an inquiry into whether any allegations
untimely raised fall within the ambit of the continuing violation theory.
Guy v. Department of Energy, EEOC Request No. 05930703 (December 16,
1993) (citing Williams). | Dorothy E. Bobowicz v. Department of Defense
01984682
August 12, 1999
Dorothy E. Bobowicz, )
Appellant, )
)
v. ) Appeal No. 01984682
) Agency No. 98EASNK006
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Commissary Agency), )
Agency. )
______________________________)
DECISION
On May 21, 1998, appellant filed a timely appeal of an April 13, 1998
final agency decision, received by her on April 22, 1998, which dismissed
six of eight allegations of her complaint for failure to contact an EEO
Counselor in a timely manner.
In her December 8, 1997 complaint, appellant alleged that she was
discriminated against on the basis of her physical disability and
subjected to sexual harassment on the basis of her sex. In its final
decision, the agency accepted the following allegations: (1) on December
5, 1997, appellant was presented with a performance plan that contained
incorrect entries and typing errors; and (2) appellant determined that
the work hours of other similarly situated employees were not cut from 32
to 16 hours per pay period on November 12, 1997. The agency identified
the dismissed allegations as whether appellant was discriminated against
when:
(a) on December 6, 1996 and on undetermined dates in March 1997 and
August 1997, the Commissary Officer refused to process her workers'
compensation claims;
(b) on an undetermined date in November 1995, the Commissary Officer
informed appellant that she was a "non-essential, injured and a liability"
and "not to get smart and pretty;"
(c) on an undetermined date in December 1996, the Deputy Commissary
Officer stated that "unless you are young and attractive, the Commissary
Officer will not do anything for you;"
(d) on an undetermined date in August 1996, the Commissary Officer
told appellant "you don't stand a prayer if you pursue this [workers']
compensation claim;"
(e) on an undetermined date in August 1996, the Deputy Commissary Officer
threatened appellant by stating that "it could get worse, we may cut
your hours even more;"
(f) since December 1995, appellant has been continuously overlooked and
denied advancement, work awards, cash awards or recognition.
In dismissing the six allegations, the agency noted that the EEO contact
was untimely and appellant failed to provide a reasonable explanation
for her untimely contact, despite the agency's December 15, 1997 letter
and a January 2, 1998 telephone call to appellant from the EEO Specialist
requesting explanations regarding the untimely EEO contact.
The record contains the agency's December 15, 1997 letter to appellant
wherein the agency requested explanations concerning appellant's
allegedly untimely EEO contact for allegations (a), (b), (c), (d)
and accepted allegation (2). In her response to the agency's letter,
appellant stated that she was not aware that she should have filed an EEO
complaint and that she was "relatively unschooled" regarding the rules
and regulations in EEO matters. In addition, in specific response to a
question concerning allegation (a), appellant stated, without elaboration,
that she had sought counseling through the agency regarding allegation(a).
Appellant also indicated in her response that she did not contact an
EEO Counselor because she felt intimidated.
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 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. EEOC Regulation
29 C.F.R. §1614.604(c) provides that the time limits in Part 1614 are
subject to waiver, estoppel and equitable tolling.
Upon review, the Commission is unable to determine the propriety of the
agency's dismissal. Although in its response to appellant's appeal the
agency stated that an EEO poster with the applicable time limitations
was on display on an employee bulletin board and that appellant
had constructive notice of the time limitations, the agency has not
provided any supporting documentation that during the relevant time
period, appellant had actual or constructive notice of the applicable
limitation period for contacting an EEO Counselor. Without specific
evidence that notices or posters containing the 45-day time limit
were conspicuously posted or specific evidence that appellant was
otherwise aware of the time limit during the relevant time period, 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
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);
Pride v. U.S. Postal Service, EEOC Request No. 05930134 (August 19,
1993)(agency's generalized affirmation that it posted EEO information
is not sufficient evidence upon which it can conclude that appellant's
contact of an EEO Counselor was untimely).
In addition, the Commission notes that in its December 15, 1997 letter,
the agency did not request any information on the timeliness of EEO
contact regarding allegations (e) or (f) nor did the agency address
appellant's claim regarding allegation (a) that she had sought counseling
from the agency. The agency also has not provided any documentation
regarding the results of the January 2, 1998 telephone call to appellant.
It is well settled 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). Also, it appears that regarding allegation (f) appellant
may be alleging recurrent incidents of discrimination. As such, the
agency is obligated to initiate an inquiry into whether any allegations
untimely raised fall within the ambit of the continuing violation theory.
Guy v. Department of Energy, EEOC Request No. 05930703 (December 16,
1993) (citing Williams). Accordingly, the dismissed allegations will
be remanded to the agency for a supplemental investigation.
As a final matter, appellant is hereby advised that failure to respond
to or address the agency's written request for information can result
in the dismissal of her complaint pursuant to 29 C.F.R. §1614.107(g).
The agency's decision dismissing allegations (a) to (f) is VACATED and
the dismissed allegations are REMANDED to the agency for a supplemental
investigation regarding the issue of timeliness of EEO contact.
ORDER
The agency is ORDERED to take the following actions:
1. The agency shall conduct a supplemental investigation on the issue
of the timeliness of EEO contact, including, but not limited to, whether
appellant had actual or constructive knowledge of the time limit for
contacting an EEO Counselor more than 45 days before she contacted an
EEO Counselor. The agency shall supplement the record with copies of
the EEO posters (or affidavits describing the posters if the posters
are unavailable) and any other evidence showing that appellant was
informed, or should have known, of the time limits for contacting an
EEO Counselor.
2. The agency shall determine in its supplemental investigation whether
appellant contacted an EEO Counselor previously as suggested in her
response to the agency's December 15, 1997 letter. If so, appellant
shall be requested to provide the dates, names, and places of alleged
EEO contacts prior to November 17, 1997 and the nature of each of
those alleged contacts. Thereafter, if appropriate, 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.
3. The agency shall also make an inquiry regarding whether appellant
is alleging a continuing violation in allegation (f) and appellant shall
provide dates when the alleged denials occurred.
4. 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 report of supplemental investigation with supporting
documentation, notice of processing 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:
August 12, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations | [
"York v. Department of Veterans Affairs, EEOC Request No. 05940575 (November 3, 1994)",
"Santiago v. U.S. Postal Service, EEOC Request No. 05950272 (July 6, 1995)",
"Pride v. U.S. Postal Service, EEOC Request No. 05930134 (August 19, 1993)",
"Williams v. Department of Defense, EEOC Request No. 05920506 (Augus... | [
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0.0667... | |
308 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120121392.pdf | 0120121392.pdf | PDF | application/pdf | 9,457 | , Complainant, v. Michael B. Donley, Secretary, Department of the Air Force, Agency. | January
18, 2012 | Appeal Number: 0120121392
Background:
At the time of events giving rise to this complaint, Complainant worked as a Police Officer at
the Agency’s Joint Base Langley -Eustis loc ated in Virginia.
On November 17, 2011, Complainant filed a formal complaint alleging that the Agency
subjected her to discrimination on the basis of sex (female) when:
The Patrol Captain reassigned Complainant from her patrol duties and put her on desk
duties on January 21, 2011.
In a final decision dated January 18, 2012, the Agency dismissed Complainant’s complaint
pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency noted that Complainant did not contact an EEO Counselor within 45 days of the alleged
discrimination. The Agency noted that even considering that Complainant states she was
formally detailed to desk duty on April 28, 2011, she did not contact the EEO Office within
the requisite time frame.
On appe al, Complainant states that she was reassigned for an extended time to desk duties
beginning in January 2011, and officially detailed in April 2011. Complainant notes that
initially she contacted an EEO Counselor in the summer of 2011, but did not pursue the
complaint unt il the fall of 2011, when her assignment to desk duties continued. Complainant
argues that s he continued to be detailed out of her Police Officer duties at the time she initiated
her complaint and that the injury was an ongoing violation.
In response to Complainant’s appeal, the Agency notes that Complainant contacted the Joint
Base Fort Eustis -Langley EEO Office on July 26, 2011, however, she did not intend on
initiating a complaint at that time and no furt her action was taken as a r esult of that specific
contact. The record contains a copy of the Information Inquiry Summary documenting
Complainant ’s July 26, 2011 contact with the Director of Equal Opportunity. The Information
Inquiry Summary notes the reason for the contact was tha t Complainant was placed on
administrative leave on January 26, 2011, and that her duties were reassigned on May 25,
2011. The Summary states that Complainant was provided information regarding the EEO
process and the 45- day time limitation for initiating an EEO c omplaint. The Summary
indicates that Complainant did not intend to initiate a complaint at this time. In addition, the
record contains a signed statement from the Deputy Director of EEO noting that on Jul y 26,
2011, Complainant met with the Director of Equal Opportunity and at that time was provided
general i nformation regarding the EEO complaint processing with emphasis on the 45- day time
limit. The Deputy Director of EEO states Complainant did not i nitiate a complaint at that
time. The Deputy Director notes Complainant did not initiate an informal complaint until
September 19, 2011.
Legal Analysis:
the Commission AFFIRMS the Agency’s final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Police Officer at
the Agency’s Joint Base Langley -Eustis loc ated in Virginia.
On November 17, 2011, Complainant filed a formal complaint alleging that the Agency
subjected her to discrimination on the basis of sex (female) when:
The Patrol Captain reassigned Complainant from her patrol duties and put her on desk
duties on January 21, 2011.
In a final decision dated January 18, 2012, the Agency dismissed Complainant’s complaint
pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency noted that Complainant did not contact an EEO Counselor within 45 days of the alleged
discrimination. The Agency noted that even considering that Complainant states she was
formally detailed to desk duty on April 28, 2011, she did not contact the EEO Office within
the requisite time frame.
On appe al, Complainant states that she was reassigned for an extended time to desk duties
beginning in January 2011, and officially detailed in April 2011. Complainant notes that
initially she contacted an EEO Counselor in the summer of 2011, but did not pursue the
complaint unt il the fall of 2011, when her assignment to desk duties continued. Complainant
argues that s he continued to be detailed out of her Police Officer duties at the time she initiated
her complaint and that the injury was an ongoing violation.
In response to Complainant’s appeal, the Agency notes that Complainant contacted the Joint
Base Fort Eustis -Langley EEO Office on July 26, 2011, however, she did not intend on
initiating a complaint at that time and no furt her action was taken as a r esult of that specific
contact. The record contains a copy of the Information Inquiry Summary documenting
Complainant ’s July 26, 2011 contact with the Director of Equal Opportunity. The Information
Inquiry Summary notes the reason for the contact was tha t Complainant was placed on
administrative leave on January 26, 2011, and that her duties were reassigned on May 25,
2011. The Summary states that Complainant was provided information regarding the EEO
process and the 45- day time limitation for initiating an EEO c omplaint. The Summary
indicates that Complainant did not intend to initiate a complaint at this time. In addition, the
record contains a signed statement from the Deputy Director of EEO noting that on Jul y 26,
2011, Complainant met with the Director of Equal Opportunity and at that time was provided
general i nformation regarding the EEO complaint processing with emphasis on the 45- day time
limit. The Deputy Director of EEO states Complainant did not i nitiate a complaint at that
time. The Deputy Director notes Complainant did not initiate an informal complaint until
September 19, 2011.
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, 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 c omplainant 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 or her) control from contacting the EEO Counselor
within the time limit, or for other reasons considered sufficient by the agency or Commission.
The Agency notes Complainant was reassigned from patrol duty to desk duty on January 21,
2011, and then formally detailed to desk duty on April 28, 2011. Complainant acknowledges
that she was reassigned for an extended time to desk duties beginning in January 2011, and
officially detailed in April 2011. The record contains a May 25, 2011 memorandum stating
that effective April 28, 2011, Complainant will be temporarily detailed to desk duties.
In the present case, assuming the alleged discriminatory event occurred at the latest on May
25, 2011, the record reveals Complainant did not initiate contact with an EEO Counsel or
within the 45- day limitation period. The record reveals that Complainant did not exhibit an
intent to begin the EEO process on July 26, 2011, when she contacted the Director of Equal
Opportunity. However, we not e that even using the July 26, 2011 date does not render the
EEO Counselor contact as timely. Complainant does not claim that she was unaware of the
time limit or unaware of how to contact the EEO office. Upon review, we find Complainant
has failed to pr ovide an adequate justification for her delay in initiating EEO Counselor
contact. Thus, we find the Agency properly dismissed Complainant’s complaint for untimely counselor contact. | ,
Complainant,
v.
Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120121392
Agency No. 9B1C11016
DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated January
18, 2012, 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, the Commission AFFIRMS the Agency’s final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Police Officer at
the Agency’s Joint Base Langley -Eustis loc ated in Virginia.
On November 17, 2011, Complainant filed a formal complaint alleging that the Agency
subjected her to discrimination on the basis of sex (female) when:
The Patrol Captain reassigned Complainant from her patrol duties and put her on desk
duties on January 21, 2011.
In a final decision dated January 18, 2012, the Agency dismissed Complainant’s complaint
pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency noted that Complainant did not contact an EEO Counselor within 45 days of the alleged
discrimination. The Agency noted that even considering that Complainant states she was
formally detailed to desk duty on April 28, 2011, she did not contact the EEO Office within
the requisite time frame.
On appe al, Complainant states that she was reassigned for an extended time to desk duties
beginning in January 2011, and officially detailed in April 2011. Complainant notes that
initially she contacted an EEO Counselor in the summer of 2011, but did not pursue the
complaint unt il the fall of 2011, when her assignment to desk duties continued. Complainant
argues that s he continued to be detailed out of her Police Officer duties at the time she initiated
her complaint and that the injury was an ongoing violation.
In response to Complainant’s appeal, the Agency notes that Complainant contacted the Joint
Base Fort Eustis -Langley EEO Office on July 26, 2011, however, she did not intend on
initiating a complaint at that time and no furt her action was taken as a r esult of that specific
contact. The record contains a copy of the Information Inquiry Summary documenting
Complainant ’s July 26, 2011 contact with the Director of Equal Opportunity. The Information
Inquiry Summary notes the reason for the contact was tha t Complainant was placed on
administrative leave on January 26, 2011, and that her duties were reassigned on May 25,
2011. The Summary states that Complainant was provided information regarding the EEO
process and the 45- day time limitation for initiating an EEO c omplaint. The Summary
indicates that Complainant did not intend to initiate a complaint at this time. In addition, the
record contains a signed statement from the Deputy Director of EEO noting that on Jul y 26,
2011, Complainant met with the Director of Equal Opportunity and at that time was provided
general i nformation regarding the EEO complaint processing with emphasis on the 45- day time
limit. The Deputy Director of EEO states Complainant did not i nitiate a complaint at that
time. The Deputy Director notes Complainant did not initiate an informal complaint until
September 19, 2011.
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, 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 c omplainant 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 or her) control from contacting the EEO Counselor
within the time limit, or for other reasons considered sufficient by the agency or Commission.
The Agency notes Complainant was reassigned from patrol duty to desk duty on January 21,
2011, and then formally detailed to desk duty on April 28, 2011. Complainant acknowledges
that she was reassigned for an extended time to desk duties beginning in January 2011, and
officially detailed in April 2011. The record contains a May 25, 2011 memorandum stating
that effective April 28, 2011, Complainant will be temporarily detailed to desk duties.
In the present case, assuming the alleged discriminatory event occurred at the latest on May
25, 2011, the record reveals Complainant did not initiate contact with an EEO Counsel or
within the 45- day limitation period. The record reveals that Complainant did not exhibit an
intent to begin the EEO process on July 26, 2011, when she contacted the Director of Equal
Opportunity. However, we not e that even using the July 26, 2011 date does not render the
EEO Counselor contact as timely. Complainant does not claim that she was unaware of the
time limit or unaware of how to contact the EEO office. Upon review, we find Complainant
has failed to pr ovide an adequate justification for her delay in initiating EEO Counselor
contact. Thus, we find the Agency properly dismissed Complainant’s complaint for untimely counselor contact.
CONCLUSION
Accordingly, the Agency's final decision is AFFIRME D.
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 tha t:
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 Commis sion, 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 f iling 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 o r
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 s tated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 18 , 2013
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309 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120110228.txt | 0120110228.txt | TXT | text/plain | 9,499 | Anthony Blalock, Complainant, v. Robert C. Tapella, Public Printer, United States Government Printing Office, Agency. | September 27, 2010 | Appeal Number: 0120110228
Background:
During the period at issue, Complainant was employed as a Machine Operator at the Agency's Quality Control/Inventory Management Division Warehouse in Washington D.C.
On April 20, 2010, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
Complainant filed the instant formal complaint on June 21, 2010. Therein, Complainant alleged that the Agency subjected him to discrimination on the bases of race and color when:
on February 17, 2010, he received a "Meets Expectation" on his FY 2009 performance evaluation which made him ineligible to receive a cash performance award.
The record reflects that Complainant further alleged that a white co-worker received an award while he did not receive one.
In its September 27, 2010 final decision, the Agency dismissed Complainant's formal complaint 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 occurred on April 20, 2010, which it found to be beyond the 45-day limitation period. The Agency noted when asked why he waited after 45 days to contact the EEO office, Complainant stated he initially went to the union, but was told by union officials to wait. The Agency further determined that Complainant provided no evidence that he was not aware of the time limits for contacting an EEO Counselor. Furthermore, the Agency concluded that EEO posters with pertinent information were on display at Complainant's workplace.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the EEO Counselor's statement that he waited too long to file the instant complaint was not true. Specifically, Complainant argues that when he initiated EEO Counselor contact, he told the EEO Counselor "that management showed us a copy of our rating but did not give a copy until weeks later." He noted that he refused to sign the rating.
In response, the Agency argues that Complainant became aware of the alleged discriminatory event in February 2010, when he raised concerns with the union that "his rating was his worst ever by management...and the only person in the section that received an outstanding was a white work leader." The Agency further argues that Complainant admits "while he apparently was going to bring it to the attention of the Agency's EEO office, the Union asked him to wait and Appellant delayed making any contact with the EEO office. Indeed, he waited for 62 days."
The record contains a copy of the EEO Counselor's Report. Therein, the EEO Counselor stated that when asked why Complainant waited after 45 days to contact the EEO office, Complainant "replied that he initially went to the Union to discuss the issues when he first received his rating and the Union President told him to hold off because several other employees were having the same issues and the employees were going to file a complaint."
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 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. 0590065 (March 29, 1990). The Commission finds that Complainant had, or should have had a reasonable suspicion of unlawful employment discrimination at the time of the alleged discriminatory event, and that he should have contacted the EEO office within forty-five days. Complainant has failed to provide sufficient justification for extending or tolling the time limitation.
Final Decision:
Accordingly, the Agency's decision to dismiss Complainant's complaint for failure to initiate contact with an EEO Counselor in a timely fashion was proper and is AFFIRMED. | Anthony Blalock,
Complainant,
v.
Robert C. Tapella,
Public Printer,
United States Government Printing Office,
Agency.
Appeal No. 0120110228
Agency No. 10-37
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated September 27, 2010, 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.
BACKGROUND
During the period at issue, Complainant was employed as a Machine Operator at the Agency's Quality Control/Inventory Management Division Warehouse in Washington D.C.
On April 20, 2010, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
Complainant filed the instant formal complaint on June 21, 2010. Therein, Complainant alleged that the Agency subjected him to discrimination on the bases of race and color when:
on February 17, 2010, he received a "Meets Expectation" on his FY 2009 performance evaluation which made him ineligible to receive a cash performance award.
The record reflects that Complainant further alleged that a white co-worker received an award while he did not receive one.
In its September 27, 2010 final decision, the Agency dismissed Complainant's formal complaint 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 occurred on April 20, 2010, which it found to be beyond the 45-day limitation period. The Agency noted when asked why he waited after 45 days to contact the EEO office, Complainant stated he initially went to the union, but was told by union officials to wait. The Agency further determined that Complainant provided no evidence that he was not aware of the time limits for contacting an EEO Counselor. Furthermore, the Agency concluded that EEO posters with pertinent information were on display at Complainant's workplace.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the EEO Counselor's statement that he waited too long to file the instant complaint was not true. Specifically, Complainant argues that when he initiated EEO Counselor contact, he told the EEO Counselor "that management showed us a copy of our rating but did not give a copy until weeks later." He noted that he refused to sign the rating.
In response, the Agency argues that Complainant became aware of the alleged discriminatory event in February 2010, when he raised concerns with the union that "his rating was his worst ever by management...and the only person in the section that received an outstanding was a white work leader." The Agency further argues that Complainant admits "while he apparently was going to bring it to the attention of the Agency's EEO office, the Union asked him to wait and Appellant delayed making any contact with the EEO office. Indeed, he waited for 62 days."
The record contains a copy of the EEO Counselor's Report. Therein, the EEO Counselor stated that when asked why Complainant waited after 45 days to contact the EEO office, Complainant "replied that he initially went to the Union to discuss the issues when he first received his rating and the Union President told him to hold off because several other employees were having the same issues and the employees were going to file a complaint."
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. 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 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. 0590065 (March 29, 1990). The Commission finds that Complainant had, or should have had a reasonable suspicion of unlawful employment discrimination at the time of the alleged discriminatory event, and that he should have contacted the EEO office within forty-five days. Complainant has failed to provide sufficient justification for extending or tolling the time limitation.
Accordingly, the Agency's decision to dismiss Complainant's complaint for failure to initiate contact with an EEO Counselor in a timely fashion was proper and 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
February 15, 2011
__________________
Date
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310 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120121755.pdf | 0120121755.pdf | PDF | application/pdf | 8,937 | , Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Drug Enforcement Administration), Agency. | February
21, 2012 | Appeal Number: 0120121755
Background:
Complainant filed a formal complaint on November 14, 2011, alleging that the Agency
subjected her to discrimination on the bases of race (Caucasian), national origin (Hispanic), sex
(female), religion (Catholic), age (57), and in reprisal for prior p rotected EEO activity when
on October 29, 2010, Special Agent In Charge (SAC) Person A : (a) called Complainant into
his office and mad e verbal sexual innuendos to her regarding a 10- year old Office of
Professional Responsibility (OPR) sexual misconduct case in which Complainant served as a
witness; (b) poked his elbow lightly in an inappropriate way into Complainant’s right arm and
stated to her "what about the thing with the OPR, remember that huh, huh"; and ( c) yelled and
shouted at Complainant by saying "shame on you, shame on you." Complainant also
contended that Person A, in the past (unspecified dates), made facial gestures by placing his
tongue in his cheek and moving it around and saying to Complainant, "you don't get it."
The Agen cy dismissed Complainant’s complaint for untimely EEO Co unselor contact. The
Agency noted that the alleged inciden ts occurred on and prior to October 29, 2010; however,
Complainant did not initiate EEO Counselor contact until September 6, 2011. The Agency
stated Complainant contended that around October 29, 2010, and the reafter (unspecified dates),
she contacted EEO counselors in both the El Paso Division and another location but failed to
initiate a complaint. The Agency noted that Complainant subsequently contacted the EEO
Staff at Headquarters on September 2, 2011, and on September 6, 2011, she contacted an EEO
Counselor in the Washington, D. C. metropolit an area to initiate a complaint. The Agency
noted that it was a period of more than 10 months after the all eged incidents occurred until
Complainant initiated an EEO complaint. The Agency noted that when the Cou nselor asked
Complainant the reason for the delay in contacting a Counselor beyond the 45-day time limit,
she stated that she was advised not to discuss any issues while her grievance was pending a
final decision. The Agency noted Complainant received a f inal grievance decision on
September 2, 2011. The Agency concluded that Complainant has not presented a sufficient
reason to extend the 45- day time period.
Legal Analysis:
the Commission AFFIRMS the Agency’s final decision.
BACKGROUND
Complainant filed a formal complaint on November 14, 2011, alleging that the Agency
subjected her to discrimination on the bases of race (Caucasian), national origin (Hispanic), sex
(female), religion (Catholic), age (57), and in reprisal for prior p rotected EEO activity when
on October 29, 2010, Special Agent In Charge (SAC) Person A : (a) called Complainant into
his office and mad e verbal sexual innuendos to her regarding a 10- year old Office of
Professional Responsibility (OPR) sexual misconduct case in which Complainant served as a
witness; (b) poked his elbow lightly in an inappropriate way into Complainant’s right arm and
stated to her "what about the thing with the OPR, remember that huh, huh"; and ( c) yelled and
shouted at Complainant by saying "shame on you, shame on you." Complainant also
contended that Person A, in the past (unspecified dates), made facial gestures by placing his
tongue in his cheek and moving it around and saying to Complainant, "you don't get it."
The Agen cy dismissed Complainant’s complaint for untimely EEO Co unselor contact. The
Agency noted that the alleged inciden ts occurred on and prior to October 29, 2010; however,
Complainant did not initiate EEO Counselor contact until September 6, 2011. The Agency
stated Complainant contended that around October 29, 2010, and the reafter (unspecified dates),
she contacted EEO counselors in both the El Paso Division and another location but failed to
initiate a complaint. The Agency noted that Complainant subsequently contacted the EEO
Staff at Headquarters on September 2, 2011, and on September 6, 2011, she contacted an EEO
Counselor in the Washington, D. C. metropolit an area to initiate a complaint. The Agency
noted that it was a period of more than 10 months after the all eged incidents occurred until
Complainant initiated an EEO complaint. The Agency noted that when the Cou nselor asked
Complainant the reason for the delay in contacting a Counselor beyond the 45-day time limit,
she stated that she was advised not to discuss any issues while her grievance was pending a
final decision. The Agency noted Complainant received a f inal grievance decision on
September 2, 2011. The Agency concluded that Complainant has not presented a sufficient
reason to extend the 45- day time period.
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, in the case of a personnel action, within 45 days of the effective date of the action. EOC Regulation 29 C.F.R. §1614.105(a)(2) allows t he 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 oc curred, that despite due diligence complainant was
prevented by circumstances beyond (his or her) control from contacting the EEO Counselor
within the time limit, or for other reasons considered sufficient by the agency or Commission.
In the present case, the alleged discriminatory incidents occurred at the latest on October 29,
2010. T he Commission notes that it is well -settled 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. U.S. Postal Service , EEOC
Request No. 05950933 (July 9, 1996). EEO Counselor contact, for purposes of tolling the
time limit, requires at a minimum that the complainant intends to pursue EEO counseling when
he/she initiates EEO contact. See Snyder v. Dep't of Def. , EEOC Request No. 05901061
(November 1, 1990); Menard v. Dep't of the Navy , EEOC Appeal No. 01990626 (January 5,
2001), request for reconsideration denied , EEOC Request No. 05A 10279 (May 9, 2001). We
find t he record contains no evidence that Complainant exhibited any intent to pursue the EEO
process prior to September 2011, which was beyond the applicable limitations period. On
appeal, 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 is AFFIRMED. | ,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Drug Enforcement Administration),
Agency.
Appeal No. 0120121755
Agency No. DEA -2012- 00008
DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated February
21, 2012, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et
seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision.
BACKGROUND
Complainant filed a formal complaint on November 14, 2011, alleging that the Agency
subjected her to discrimination on the bases of race (Caucasian), national origin (Hispanic), sex
(female), religion (Catholic), age (57), and in reprisal for prior p rotected EEO activity when
on October 29, 2010, Special Agent In Charge (SAC) Person A : (a) called Complainant into
his office and mad e verbal sexual innuendos to her regarding a 10- year old Office of
Professional Responsibility (OPR) sexual misconduct case in which Complainant served as a
witness; (b) poked his elbow lightly in an inappropriate way into Complainant’s right arm and
stated to her "what about the thing with the OPR, remember that huh, huh"; and ( c) yelled and
shouted at Complainant by saying "shame on you, shame on you." Complainant also
contended that Person A, in the past (unspecified dates), made facial gestures by placing his
tongue in his cheek and moving it around and saying to Complainant, "you don't get it."
The Agen cy dismissed Complainant’s complaint for untimely EEO Co unselor contact. The
Agency noted that the alleged inciden ts occurred on and prior to October 29, 2010; however,
Complainant did not initiate EEO Counselor contact until September 6, 2011. The Agency
stated Complainant contended that around October 29, 2010, and the reafter (unspecified dates),
she contacted EEO counselors in both the El Paso Division and another location but failed to
initiate a complaint. The Agency noted that Complainant subsequently contacted the EEO
Staff at Headquarters on September 2, 2011, and on September 6, 2011, she contacted an EEO
Counselor in the Washington, D. C. metropolit an area to initiate a complaint. The Agency
noted that it was a period of more than 10 months after the all eged incidents occurred until
Complainant initiated an EEO complaint. The Agency noted that when the Cou nselor asked
Complainant the reason for the delay in contacting a Counselor beyond the 45-day time limit,
she stated that she was advised not to discuss any issues while her grievance was pending a
final decision. The Agency noted Complainant received a f inal grievance decision on
September 2, 2011. The Agency concluded that Complainant has not presented a sufficient
reason to extend the 45- day time period.
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, in the case of a personnel action, within 45 days of the effective date of the action. EOC Regulation 29 C.F.R. §1614.105(a)(2) allows t he 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 oc curred, that despite due diligence complainant was
prevented by circumstances beyond (his or her) control from contacting the EEO Counselor
within the time limit, or for other reasons considered sufficient by the agency or Commission.
In the present case, the alleged discriminatory incidents occurred at the latest on October 29,
2010. T he Commission notes that it is well -settled 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. U.S. Postal Service , EEOC
Request No. 05950933 (July 9, 1996). EEO Counselor contact, for purposes of tolling the
time limit, requires at a minimum that the complainant intends to pursue EEO counseling when
he/she initiates EEO contact. See Snyder v. Dep't of Def. , EEOC Request No. 05901061
(November 1, 1990); Menard v. Dep't of the Navy , EEOC Appeal No. 01990626 (January 5,
2001), request for reconsideration denied , EEOC Request No. 05A 10279 (May 9, 2001). We
find t he record contains no evidence that Complainant exhibited any intent to pursue the EEO
process prior to September 2011, which was beyond the applicable limitations period. On
appeal, Complainant has presented no persuasive arguments or evidence warranting an
extension of the time limit for initiating EEO Counselor contact.
CONCLUSION
Accordingly, the Agency’s final decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION
(M0610)
The Commission may, in its di scretion, 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 thir ty (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 req uest 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. Se e 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 25 , 2013
Date | [
"Allen v. U.S. Postal Service , EEOC Request No. 05950933 (July 9, 1996)",
"Snyder v. Dep't of Def. , EEOC Request No. 05901061 (November 1, 1990)",
"Menard v. Dep't of the Navy , EEOC Appeal No. 01990626 (January 5, 2001)",
"29 C.F.R. § 1614.405",
"29 C.F.R. § 1614.604",
"29 C.F.R. § 1614.604(c)",
"42 ... | [
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311 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/05980473.txt | 05980473.txt | TXT | text/plain | 8,981 | June 24, 1999 | Appeal Number: 01974448
Case Facts:
when the party requesting reconsideration submits written argument or
evidence that tends to establish at least one of the criteria of 29
C.F.R. §1614.407(c). Having reviewed the record and submissions of
the parties, we find that agency's request meets the criteria of 29
C.F.R. §1614.407(c). Upon reconsideration, we find that the agency
properly dismissed the three allegations at issue for untimely EEO
contact.
Legal Analysis:
the Commission) to reconsider the decision in
Clarence P. Kader, Jr. v. William J. Henderson, Postmaster General,
United States Postal Service, EEOC Appeal No. 01974448 (March 6, 1998).
EEOC regulations provide that the Commissioners may, in their discretion,
reconsider any previous decision. 29 C.F.R. §1614.407(a). The party
requesting reconsideration must submit written argument or evidence
which tends to establish one or more of the following three criteria:
new and material evidence is available that was not readily available
when the previous decision was issued, 29 C.F.R. §1614.407(c)(1);
the previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy, 29
C.F.R. §1614.407(c)(2); and the decision is of such exceptional nature as
to have substantial precedential implications, 29 C.F.R. §1614.407(c)(3).
For the reasons set forth herein, the agency's request is granted.
The issue presented is whether the previous decision properly reversed
the dismissal of three issues in appellant's complaint.
Appellant contacted an EEO counselor on January 16 and filed his formal
complaint on March 20, 1997, alleging discrimination based on age (age 55)
and reprisal. The agency issued a final agency decision (FAD) on April
11, 1997, dismissing three issues for untimely EEO contact.<1> Appellant
filed an appeal, and the previous decision reversed the agency's action.
The agency has filed the instant request, arguing that the previous
decision was incorrect as a matter of law.
The allegations at issue concern events that occurred between August
1995 and November 6, 1996. Appellant alleged that:
(a) in August 1995, he was not selected for the position of Postmaster
in Kill Buck, New York;
(b) from October 1995 through November 1996, while on detail, he was
required to periodically cover his carrier route and denied overtime on
Saturdays; and
(c) on November 6, 1996, his detail as Officer-in-Charge at Versailles,
New York, ended.
On appeal, appellant contended that EEO posters were not available at
either the Lily Dale or Versailles facilities and that he was unaware of
the time limitations. The previous decision reversed the agency's FAD
and held that "prior EEO activity alone is insufficient" to establish
appellant's knowledge of the time requirements.<2>
In its request, the agency argues that the previous decision failed to
follow Commission precedent that presumed an appellant to be familiar with
EEO filing requirements based on his prior EEO activity. In support, the
agency cites Coffey v. Department of the Navy, EEOC Request No. 05901006
(November 16, 1990). In response, appellant contends that his EEO
activity in early 1994 was limited and not sufficient to inform him of
EEO procedures and filing requirements.
The Commission may, in its discretion, reconsider any previous decision
when the party requesting reconsideration submits written argument or
evidence that tends to establish at least one of the criteria of 29
C.F.R. §1614.407(c). Having reviewed the record and submissions of
the parties, we find that agency's request meets the criteria of 29
C.F.R. §1614.407(c). Upon reconsideration, we find that the agency
properly dismissed the three allegations at issue for untimely EEO
contact.
EEOC Regulation 29 C.F.R. §1614.105(a)(1) requires that complaints
of discrimination be brought to the attention of an EEO counselor
within forty-five (45) days of the date of the matter alleged to
be discriminatory. Appellant did not contact an EEO counselor until
more than 45 days after the events in the allegations at issue herein.
Appellant has not asserted that he was unaware of the discriminatory
nature of the acts complained of, and, as a previous participant in the
EEO process, he was presumed to be cognizant of the time limitations
for contacting an EEO counselor. See Coffey v. Department of the Navy,
supra.
Appellant argues that his prior EEO experience was limited and that no
poster was available at two of his assigned duty stations. Nevertheless,
the Commission has consistently held that an appellant who has engaged
in prior EEO activity is deemed aware of the time frames required for
filing complaints in the EEO procedure. Coffey, supra; Patrick v. USPS,
EEOC Request No. 05940633 (November 10, 1994).<3> For the above reasons,
we find that the agency properly dismissed the three allegations before
us for untimely contact with an EEO counselor. | Clarence P. Kader, Jr. v. United States Postal Service
05980473
June 24, 1999
Clarence P. Kader, Jr., )
Appellant, )
) Request No. 05980473
v. ) Appeal No. 01974448
) Agency No. 4B-140-0038-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
GRANT OF REQUEST FOR RECONSIDERATION
On March 17, 1998, the United States Postal Service (hereinafter referred
to as the agency) timely initiated a request to the Equal Employment
Opportunity Commission (the Commission) to reconsider the decision in
Clarence P. Kader, Jr. v. William J. Henderson, Postmaster General,
United States Postal Service, EEOC Appeal No. 01974448 (March 6, 1998).
EEOC regulations provide that the Commissioners may, in their discretion,
reconsider any previous decision. 29 C.F.R. §1614.407(a). The party
requesting reconsideration must submit written argument or evidence
which tends to establish one or more of the following three criteria:
new and material evidence is available that was not readily available
when the previous decision was issued, 29 C.F.R. §1614.407(c)(1);
the previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy, 29
C.F.R. §1614.407(c)(2); and the decision is of such exceptional nature as
to have substantial precedential implications, 29 C.F.R. §1614.407(c)(3).
For the reasons set forth herein, the agency's request is granted.
The issue presented is whether the previous decision properly reversed
the dismissal of three issues in appellant's complaint.
Appellant contacted an EEO counselor on January 16 and filed his formal
complaint on March 20, 1997, alleging discrimination based on age (age 55)
and reprisal. The agency issued a final agency decision (FAD) on April
11, 1997, dismissing three issues for untimely EEO contact.<1> Appellant
filed an appeal, and the previous decision reversed the agency's action.
The agency has filed the instant request, arguing that the previous
decision was incorrect as a matter of law.
The allegations at issue concern events that occurred between August
1995 and November 6, 1996. Appellant alleged that:
(a) in August 1995, he was not selected for the position of Postmaster
in Kill Buck, New York;
(b) from October 1995 through November 1996, while on detail, he was
required to periodically cover his carrier route and denied overtime on
Saturdays; and
(c) on November 6, 1996, his detail as Officer-in-Charge at Versailles,
New York, ended.
On appeal, appellant contended that EEO posters were not available at
either the Lily Dale or Versailles facilities and that he was unaware of
the time limitations. The previous decision reversed the agency's FAD
and held that "prior EEO activity alone is insufficient" to establish
appellant's knowledge of the time requirements.<2>
In its request, the agency argues that the previous decision failed to
follow Commission precedent that presumed an appellant to be familiar with
EEO filing requirements based on his prior EEO activity. In support, the
agency cites Coffey v. Department of the Navy, EEOC Request No. 05901006
(November 16, 1990). In response, appellant contends that his EEO
activity in early 1994 was limited and not sufficient to inform him of
EEO procedures and filing requirements.
The Commission may, in its discretion, reconsider any previous decision
when the party requesting reconsideration submits written argument or
evidence that tends to establish at least one of the criteria of 29
C.F.R. §1614.407(c). Having reviewed the record and submissions of
the parties, we find that agency's request meets the criteria of 29
C.F.R. §1614.407(c). Upon reconsideration, we find that the agency
properly dismissed the three allegations at issue for untimely EEO
contact.
EEOC Regulation 29 C.F.R. §1614.105(a)(1) requires that complaints
of discrimination be brought to the attention of an EEO counselor
within forty-five (45) days of the date of the matter alleged to
be discriminatory. Appellant did not contact an EEO counselor until
more than 45 days after the events in the allegations at issue herein.
Appellant has not asserted that he was unaware of the discriminatory
nature of the acts complained of, and, as a previous participant in the
EEO process, he was presumed to be cognizant of the time limitations
for contacting an EEO counselor. See Coffey v. Department of the Navy,
supra.
Appellant argues that his prior EEO experience was limited and that no
poster was available at two of his assigned duty stations. Nevertheless,
the Commission has consistently held that an appellant who has engaged
in prior EEO activity is deemed aware of the time frames required for
filing complaints in the EEO procedure. Coffey, supra; Patrick v. USPS,
EEOC Request No. 05940633 (November 10, 1994).<3> For the above reasons,
we find that the agency properly dismissed the three allegations before
us for untimely contact with an EEO counselor.
CONCLUSION
After a review of the agency's request for reconsideration, the
appellant's reply thereto, the previous decision, and the entire record,
the Commission finds that the agency's request meets the criteria of 29
C.F.R. §1614.407(c). It is therefore the decision of the Commission to
grant the agency's request. The decision in EEOC Appeal No. 01974448
(March 6, 1998) is REVERSED, and the agency's decision is AFFIRMED.
There is no further right of administrative appeal on a decision of the
Commission on a Request for Reconsideration.
STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
RIGHT TO FILE A CIVIL ACTION (P0993)
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.
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.
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 24, 1999
Date Frances M. Hart
Executive Officer
1The agency accepted issues regarding a non-selection, requests for leave,
and comments by his supervisor regarding his position and retirement.
2Appellant began working at the agency as a carrier in Springville,
New York. In January 1994, appellant contacted an EEO counselor and,
following counseling, was issued a Notice of Final Interview on February
24, 1994; appellant did not file a formal complaint.
3We note, in addition, that appellant had management experience and
supervisory training, having served as Officer-in-Charge (OIC) at two
local post offices and taken numerous management and supervisory training
courses. | [
"Coffey v. Department of the Navy, EEOC Request No. 05901006 (November 16, 1990)",
"Patrick v. USPS, EEOC Request No. 05940633 (November 10, 1994)"
] | [
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0.042645107954740524,
-0.07677987217903137,
-0.... | |
312 | https://www.eeoc.gov/sites/default/files/decisions/2022_03_02/2019002331.pdf | 2019002331.pdf | PDF | application/pdf | 8,714 | Garrett M .,1 Complainant, v. Christin e Wormuth, Secretary, Department of the Army, Agency. | November 30, 2018 | Appeal Number: 2019002331
Background:
During the period at issue , Compl ainant worked as a Mechanical Engineer, GS -13, at the
Agency’s US A rmy Garrison Detroit Arsenal in Warren, Michigan.
On November 16, 2018, Complainant filed a formal complaint claiming that the Agency
discriminated against him based on race and sex when , on July 20, 2018, Complainant was
removed from the NGCV team after a confrontation during a me eting with another team member
on July 19, 2018. In its November 30, 2018 final decision, the Agency dismissed the formal complaint for untimely EEO counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency
determined that Complainant’s init ial EEO c ounselor contact was on September 18, 2018, which
it found to be beyond the regulatory 45 -day limitation period. 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 discri minatory or, in the case of personnel action,
within forty -five (45) days of the effective date of the a ction.
The Agency properly dismissed Complainant’s complaint for untimely EEO Counselor contact. Here, the sole discriminatory incident at issue occurred on July 20, 2018. Therefore,
Complainant had 45 days, or until September 3 , 2018, to timely initiate EEO counselor contact.
The EEO Counselor’s report indicates that Complainant di d not seek counseling until September
18, 2018, approximately fifteen days beyond the 45- day limitation period.
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 occurr ed, that despite due diligence he was prevented by circumstances
beyond his control from contacting the Counselor within the time limits, or for other reason s
considered sufficient by the Agency or the Commis sion. 29 C.F.R. § 1614.105(a)(2).
On appeal, Complainant explains that he contacted the EEO office as early as August 2018 .
However, Complainant clarifies that at the time he simply wanted to learn mo re about the EEO
complaint process. Consequently, Complainant had not, in August 2018, displayed an intent to
pursue the EEO complaint process.
2 Complainant states that he informed the EEO Counselor on
September 11, 2018 that he wanted to initiate the EEO complaint process, but was told he could not meet with the EEO Counselor until September 18, 2018. Nevertheless, Complainant’s EEO Counselor contact was still u ntimely because it did not occur on or before September 3, 2018. | Garrett M .,1
Complainant,
v.
Christin e Wormuth,
Secretary,
Department of the Army,
Agency.
Appeal No. 2019002331
Agency No. ARDETROIT18SEP03600
DECISION
Complaina nt filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated November 30, 2018, 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.
BACKGROUND
During the period at issue , Compl ainant worked as a Mechanical Engineer, GS -13, at the
Agency’s US A rmy Garrison Detroit Arsenal in Warren, Michigan.
On November 16, 2018, Complainant filed a formal complaint claiming that the Agency
discriminated against him based on race and sex when , on July 20, 2018, Complainant was
removed from the NGCV team after a confrontation during a me eting with another team member
on July 19, 2018. In its November 30, 2018 final decision, the Agency dismissed the formal complaint for untimely EEO counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency
determined that Complainant’s init ial EEO c ounselor contact was on September 18, 2018, which
it found to be beyond the regulatory 45 -day limitation period. 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 discri minatory or, in the case of personnel action,
within forty -five (45) days of the effective date of the a ction.
The Agency properly dismissed Complainant’s complaint for untimely EEO Counselor contact. Here, the sole discriminatory incident at issue occurred on July 20, 2018. Therefore,
Complainant had 45 days, or until September 3 , 2018, to timely initiate EEO counselor contact.
The EEO Counselor’s report indicates that Complainant di d not seek counseling until September
18, 2018, approximately fifteen days beyond the 45- day limitation period.
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 occurr ed, that despite due diligence he was prevented by circumstances
beyond his control from contacting the Counselor within the time limits, or for other reason s
considered sufficient by the Agency or the Commis sion. 29 C.F.R. § 1614.105(a)(2).
On appeal, Complainant explains that he contacted the EEO office as early as August 2018 .
However, Complainant clarifies that at the time he simply wanted to learn mo re about the EEO
complaint process. Consequently, Complainant had not, in August 2018, displayed an intent to
pursue the EEO complaint process.
2 Complainant states that he informed the EEO Counselor on
September 11, 2018 that he wanted to initiate the EEO complaint process, but was told he could not meet with the EEO Counselor until September 18, 2018. Nevertheless, Complainant’s EEO Counselor contact was still u ntimely because it did not occur on or before September 3, 2018.
CONCLUSION
The Agency’s dismissal of the formal complaint for untimely EEO Counselor contact is
AFFIRMED.
2 It is well 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).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0920)
The Commission may, in its discretion, reconsider this appellate decision if Complainant or the
Agency submits a wri tten request that contains arguments or evidence that tend to establish that:
1. T he 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, pr actices, or
operations of the agency.
Requests for reconsideration must be filed wi th 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 stateme nt or brief in support of the request, that statement or
brief must be filed togethe r 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 a ny 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 addr essed to 131 M Street, NE,
Washington, D C 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 reque st 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 in clude proof of service on the other part y,
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 i n 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 re sult 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 reco nsider and also file a civil action, filing a civil act ion 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 civ il 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 14, 2021
Date | [
"Floyd v. National Guard Bureau, EEOC Request No. 05890086 (June 22, 1989)",
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"29 C.F.R. § 1614.105(a)",
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"29 C.F.R. § 1614.604",
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0.0048... |
313 | https://www.eeoc.gov/sites/default/files/decisions/2022_01_12/2019002331.pdf | 2019002331.pdf | PDF | application/pdf | 8,714 | Garrett M .,1 Complainant, v. Christin e Wormuth, Secretary, Department of the Army, Agency. | November 30, 2018 | Appeal Number: 2019002331
Background:
During the period at issue , Compl ainant worked as a Mechanical Engineer, GS -13, at the
Agency’s US A rmy Garrison Detroit Arsenal in Warren, Michigan.
On November 16, 2018, Complainant filed a formal complaint claiming that the Agency
discriminated against him based on race and sex when , on July 20, 2018, Complainant was
removed from the NGCV team after a confrontation during a me eting with another team member
on July 19, 2018. In its November 30, 2018 final decision, the Agency dismissed the formal complaint for untimely EEO counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency
determined that Complainant’s init ial EEO c ounselor contact was on September 18, 2018, which
it found to be beyond the regulatory 45 -day limitation period. 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 discri minatory or, in the case of personnel action,
within forty -five (45) days of the effective date of the a ction.
The Agency properly dismissed Complainant’s complaint for untimely EEO Counselor contact. Here, the sole discriminatory incident at issue occurred on July 20, 2018. Therefore,
Complainant had 45 days, or until September 3 , 2018, to timely initiate EEO counselor contact.
The EEO Counselor’s report indicates that Complainant di d not seek counseling until September
18, 2018, approximately fifteen days beyond the 45- day limitation period.
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 occurr ed, that despite due diligence he was prevented by circumstances
beyond his control from contacting the Counselor within the time limits, or for other reason s
considered sufficient by the Agency or the Commis sion. 29 C.F.R. § 1614.105(a)(2).
On appeal, Complainant explains that he contacted the EEO office as early as August 2018 .
However, Complainant clarifies that at the time he simply wanted to learn mo re about the EEO
complaint process. Consequently, Complainant had not, in August 2018, displayed an intent to
pursue the EEO complaint process.
2 Complainant states that he informed the EEO Counselor on
September 11, 2018 that he wanted to initiate the EEO complaint process, but was told he could not meet with the EEO Counselor until September 18, 2018. Nevertheless, Complainant’s EEO Counselor contact was still u ntimely because it did not occur on or before September 3, 2018. | Garrett M .,1
Complainant,
v.
Christin e Wormuth,
Secretary,
Department of the Army,
Agency.
Appeal No. 2019002331
Agency No. ARDETROIT18SEP03600
DECISION
Complaina nt filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated November 30, 2018, 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.
BACKGROUND
During the period at issue , Compl ainant worked as a Mechanical Engineer, GS -13, at the
Agency’s US A rmy Garrison Detroit Arsenal in Warren, Michigan.
On November 16, 2018, Complainant filed a formal complaint claiming that the Agency
discriminated against him based on race and sex when , on July 20, 2018, Complainant was
removed from the NGCV team after a confrontation during a me eting with another team member
on July 19, 2018. In its November 30, 2018 final decision, the Agency dismissed the formal complaint for untimely EEO counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency
determined that Complainant’s init ial EEO c ounselor contact was on September 18, 2018, which
it found to be beyond the regulatory 45 -day limitation period. 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 discri minatory or, in the case of personnel action,
within forty -five (45) days of the effective date of the a ction.
The Agency properly dismissed Complainant’s complaint for untimely EEO Counselor contact. Here, the sole discriminatory incident at issue occurred on July 20, 2018. Therefore,
Complainant had 45 days, or until September 3 , 2018, to timely initiate EEO counselor contact.
The EEO Counselor’s report indicates that Complainant di d not seek counseling until September
18, 2018, approximately fifteen days beyond the 45- day limitation period.
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 occurr ed, that despite due diligence he was prevented by circumstances
beyond his control from contacting the Counselor within the time limits, or for other reason s
considered sufficient by the Agency or the Commis sion. 29 C.F.R. § 1614.105(a)(2).
On appeal, Complainant explains that he contacted the EEO office as early as August 2018 .
However, Complainant clarifies that at the time he simply wanted to learn mo re about the EEO
complaint process. Consequently, Complainant had not, in August 2018, displayed an intent to
pursue the EEO complaint process.
2 Complainant states that he informed the EEO Counselor on
September 11, 2018 that he wanted to initiate the EEO complaint process, but was told he could not meet with the EEO Counselor until September 18, 2018. Nevertheless, Complainant’s EEO Counselor contact was still u ntimely because it did not occur on or before September 3, 2018.
CONCLUSION
The Agency’s dismissal of the formal complaint for untimely EEO Counselor contact is
AFFIRMED.
2 It is well 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).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0920)
The Commission may, in its discretion, reconsider this appellate decision if Complainant or the
Agency submits a wri tten request that contains arguments or evidence that tend to establish that:
1. T he 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, pr actices, or
operations of the agency.
Requests for reconsideration must be filed wi th 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 stateme nt or brief in support of the request, that statement or
brief must be filed togethe r 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 a ny 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 addr essed to 131 M Street, NE,
Washington, D C 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 reque st 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 in clude proof of service on the other part y,
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 i n 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 re sult 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 reco nsider and also file a civil action, filing a civil act ion 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 civ il 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 14, 2021
Date | [
"Floyd v. National Guard Bureau, EEOC Request No. 05890086 (June 22, 1989)",
"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. § 1614.403(g)",
"29 C.F.R. § 1614.604(c)",
"42 U.S.C. § 2000e"
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0.021731136366724968,
0.020481469109654427,
-0.029209908097982407,
-0.0424540638923645,
0.0048... |
314 | https://www.eeoc.gov/sites/default/files/decisions/2022_04_20/2022001082.pdf | 2022001082.pdf | PDF | application/pdf | 8,984 | Derrick P .,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. | November 1, 2021 | Appeal Number: 2022001082
Background:
During the period at issue , Complainant worked as a Program Manager, Grade GS -13, for the
Agency’s Office of Resolution Management (ORM) , in Southeast ern Operations . Complainant
worked full -time, remotely, from his home near Marietta, Georgia.
On September 10, 2021, Complainant initiated contact with an EEO counselor, but the matter
was not resolve d though EEO counseling. On November 2, 2021, Complainant filed a formal
complaint alleging that the Agency subjected him to discrimination based on race (African
American), sex , disability , and in reprisal 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 2022001082
1. On February 16, 2021 and March 23, 2021, O RM failed to take
action when Complainant requested to remove senior Agency
officials from his prior EEO complain t;
2. On April 16, 2021, ORM’s Deputy Assistant Secretary failed to
respond to Complainant’s Freedom of Information Act (FOIA) request for docum ents relating to Complainant’s prior cases;
3. On May 25, 2021 and other dates unspecified, a responsible management official for the Agency refused to use Complainant’s personal email address and sent harassing emails to Complainant’s work email address regarding a previous EEO complaint ; and
4. On August 11, 2021, a responsible management official sent
unencrypted emails pertaining to his previous EEO complaint to
his work email address.
Citing 29 C.F.R. § 1614.107(a)(8) , the Agency dismissed all of the subject because they referred
to processing of his prior EEO claims. The Agency stated that issues concerning EEO complaint
processing of current complaints had to be raised during the EEO processing of the underlying
complaint .
The instant appeal follow ed. On appeal Complainant contended that the Agency had concluded
its investigation without fully investigating his claims. Complainant claims that a manager , as
opposed to the Agency’s EEO specialists, drafted the final agency decision. Complainant nam es
other Agency officials that he alleged committed misconduct related to his EEO claims. Finally, Complainant maintain s that the Agency’s dismissal should be reversed because Complainant’s
present claims , now on appeal , had raised new and different matte rs that were different from his
prior EEO complaint.
Legal Analysis:
the Commission’s website.
2 2022001082
1. On February 16, 2021 and March 23, 2021, O RM failed to take
action when Complainant requested to remove senior Agency
officials from his prior EEO complain t;
2. On April 16, 2021, ORM’s Deputy Assistant Secretary failed to
respond to Complainant’s Freedom of Information Act (FOIA) request for docum ents relating to Complainant’s prior cases;
3. On May 25, 2021 and other dates unspecified, a responsible management official for the Agency refused to use Complainant’s personal email address and sent harassing emails to Complainant’s work email address regarding a previous EEO complaint ; and
4. On August 11, 2021, a responsible management official sent
unencrypted emails pertaining to his previous EEO complaint to
his work email address.
Citing 29 C.F.R. § 1614.107(a)(8) , the Agency dismissed all of the subject because they referred
to processing of his prior EEO claims. The Agency stated that issues concerning EEO complaint
processing of current complaints had to be raised during the EEO processing of the underlying
complaint .
The instant appeal follow ed. On appeal Complainant contended that the Agency had concluded
its investigation without fully investigating his claims. Complainant claims that a manager , as
opposed to the Agency’s EEO specialists, drafted the final agency decision. Complainant nam es
other Agency officials that he alleged committed misconduct related to his EEO claims. Finally, Complainant maintain s that the Agency’s dismissal should be reversed because Complainant’s
present claims , now on appeal , had raised new and different matte rs that were different from his
prior EEO complaint.
ANALYSIS AND FINDINGS
Under the Commission’s regulations set forth at 29 C.F.R. §§ 1614.103, 1614.106(a) the Agency
must accept a complaint from an aggrieved employee states a justiciable claim that he has been
subjected to employment discrimination because of EEO -protected characteristics or because of
EEO -protected activit ies.
Nevertheless, here w e agree with the Agency. I nstead of stating justiciable employment
discrimination claim s, Complaina nt made accusations that merely voice his dissatisfaction with
processing of his prior EEO complaint . A fair reading of Complainant’s accepted allegations
reveals that each one criticize s the Agency’s handling of Complainant’ s prior EEO complaints .
There fore, in accordance with 29 C.F.R. § 1614.107(a)(8) , this Commission finds that Agency
appropriately dismissed the present claims for alleging dissatisfaction with processing of a
previously filed complaint.
3 2022001082 | Derrick P .,1
Complainant,
v.
Denis R. McDonough,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 2022001082
Agency No. VA-200C- XX08 -2021105623
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated November 1, 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 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 Program Manager, Grade GS -13, for the
Agency’s Office of Resolution Management (ORM) , in Southeast ern Operations . Complainant
worked full -time, remotely, from his home near Marietta, Georgia.
On September 10, 2021, Complainant initiated contact with an EEO counselor, but the matter
was not resolve d though EEO counseling. On November 2, 2021, Complainant filed a formal
complaint alleging that the Agency subjected him to discrimination based on race (African
American), sex , disability , and in reprisal 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 2022001082
1. On February 16, 2021 and March 23, 2021, O RM failed to take
action when Complainant requested to remove senior Agency
officials from his prior EEO complain t;
2. On April 16, 2021, ORM’s Deputy Assistant Secretary failed to
respond to Complainant’s Freedom of Information Act (FOIA) request for docum ents relating to Complainant’s prior cases;
3. On May 25, 2021 and other dates unspecified, a responsible management official for the Agency refused to use Complainant’s personal email address and sent harassing emails to Complainant’s work email address regarding a previous EEO complaint ; and
4. On August 11, 2021, a responsible management official sent
unencrypted emails pertaining to his previous EEO complaint to
his work email address.
Citing 29 C.F.R. § 1614.107(a)(8) , the Agency dismissed all of the subject because they referred
to processing of his prior EEO claims. The Agency stated that issues concerning EEO complaint
processing of current complaints had to be raised during the EEO processing of the underlying
complaint .
The instant appeal follow ed. On appeal Complainant contended that the Agency had concluded
its investigation without fully investigating his claims. Complainant claims that a manager , as
opposed to the Agency’s EEO specialists, drafted the final agency decision. Complainant nam es
other Agency officials that he alleged committed misconduct related to his EEO claims. Finally, Complainant maintain s that the Agency’s dismissal should be reversed because Complainant’s
present claims , now on appeal , had raised new and different matte rs that were different from his
prior EEO complaint.
ANALYSIS AND FINDINGS
Under the Commission’s regulations set forth at 29 C.F.R. §§ 1614.103, 1614.106(a) the Agency
must accept a complaint from an aggrieved employee states a justiciable claim that he has been
subjected to employment discrimination because of EEO -protected characteristics or because of
EEO -protected activit ies.
Nevertheless, here w e agree with the Agency. I nstead of stating justiciable employment
discrimination claim s, Complaina nt made accusations that merely voice his dissatisfaction with
processing of his prior EEO complaint . A fair reading of Complainant’s accepted allegations
reveals that each one criticize s the Agency’s handling of Complainant’ s prior EEO complaints .
There fore, in accordance with 29 C.F.R. § 1614.107(a)(8) , this Commission finds that Agency
appropriately dismissed the present claims for alleging dissatisfaction with processing of a
previously filed complaint.
3 2022001082
CONCLUSION
We AFFIRM the Agency's final deci sion dismissing the formal complaint for the reason
discussed above.
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 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 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 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 state ment 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, Complainant can submit his or her request and arguments to the Director, Office
of Federal Operations, E qual 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 t he 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 reconsi deration must be submitted in digital format via the EEOC’s
Federal S ector 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.
4 2022001082
Failure to file within the 30 -day time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating c ircumstances prevented the timely filing of the
request. Any support ing 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 d ecision. If you file a civil action,
you must name as the d efendant 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 dis missal of your case in court. “Agency” or “department” mean s 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 termin ate 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 witho ut 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 14, 2022
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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315 | https://www.eeoc.gov/sites/default/files/decisions/2022_11_04/2022002147.pdf | 2022002147.pdf | PDF | application/pdf | 8,735 | Shayne K,1 Complainant, v. William J. Burns, Director, Central Intelligence Agency, Agency. | March 14, 2022 | Appeal Number: 2022002147
Background:
During the period at issue, Complainant was an applicant who had not been extended a conditional offer of employment with the Agency. On February 1, 2022, Complainant filed an equal employment opportunity (EEO) complaint
alleging that the Agency discriminated against him based on his race (Black) and reprisal (associated with his father who had prior EEO activity under an EEO statute that was unspecified in the record ) when:
1. on or before February 23, 2020, it did not ex tend him a c onditional offer of employment
for positions he applied for on 9 January 2020.
2. on or before October 2, 2021, it did not extend him a conditional offer of employment for a position he applied for on August 18, 2021.
On February 8, 2022, soon after Complainant filed his EEO complaint, his designated
representative by email to the Agency that was copied to Complainant wrote that at
Complainant’s request this was notice the EEO complaint is withdrawn . The representative
attached a notice of withdrawal signed by the representative.
By email later on February 8, 2022, Complainant notified the Agency that he changed his mind,
and wanted to go forward with the EEO complaint . He did not explain why he withdrew his EEO
complaint. By email on February 10, 2022, to Complainant and his representative, the Agency
acknowledged receiving Complainant ’s email that he changed his mind, and advised that in the
coming weeks an acceptance or dismissal letter would be issued. Before the FAD was issued on February 28, 2022, Complainant did not explain why he withdrew his EEO complaint. The Agency, citing EEOC cases, dismissed the complaint since Complainant expressed a clear
intent to withdraw his EEO complaint, he could not revive it by rescinding his withdrawal. The instant appeal followed.
On appeal, Complainant argues that he discu ssed with his representative withdrawing his EEO
complaint , and as communicated in his email he changed his mind. He questions why the
withdrawal was effective since he did not sign anything certifying that he wanted to withdraw his EEO complaint. He expla ins he withdrew his EEO complaint because he was disappointed by
the way it was processing his EEO case.
In reply, the Agency argues that Complainant withdrew his complaint knowingly and
voluntarily, and has not shown he was coerced to do so.
Legal Analysis:
the Commission
considers the matter to have been finally abandoned.” Tellez v. Transportation, EEOC Request
No. 05930805 (Feb. 25, 1994). A complainant may not request reinstatement of an inf ormal
complaint unless the complaint was withdrawn pursuant to a settlement agreement . An exception
is a showing of coercion. Allen v. Department of Defense , EEOC Request No. 05940168 (May
25, 1995). This reasoning also applies to formal EEO complaints. T he dismissal of a complaint is
improper if the agency's action in misleading or misinforming the complainant resulted in the dismissal. Perry v. United States Postal Service , EEOC Appeal No. 01A45685 (October 17,
2005). Complainant concedes his representat ive withdrew his EEO complaint at his request.
Complainant does not contend he was coerced or misled into withdrawing his EEO complaint.
Final Decision:
Accordingly, the FAD is AFFIRMED. | Shayne K,1
Complainant,
v.
William J. Burns,
Director,
Central Intelligence Agency,
Agency.
Appeal No. 2022002147
Agency No. 22-16
DECISION
On March 14, 2022, Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a February 28, 2022 final Agency decision (FAD)
dismissing his compl aint of 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 was an applicant who had not been extended a conditional offer of employment with the Agency. On February 1, 2022, Complainant filed an equal employment opportunity (EEO) complaint
alleging that the Agency discriminated against him based on his race (Black) and reprisal (associated with his father who had prior EEO activity under an EEO statute that was unspecified in the record ) when:
1. on or before February 23, 2020, it did not ex tend him a c onditional offer of employment
for positions he applied for on 9 January 2020.
2. on or before October 2, 2021, it did not extend him a conditional offer of employment for a position he applied for on August 18, 2021.
On February 8, 2022, soon after Complainant filed his EEO complaint, his designated
representative by email to the Agency that was copied to Complainant wrote that at
Complainant’s request this was notice the EEO complaint is withdrawn . The representative
attached a notice of withdrawal signed by the representative.
By email later on February 8, 2022, Complainant notified the Agency that he changed his mind,
and wanted to go forward with the EEO complaint . He did not explain why he withdrew his EEO
complaint. By email on February 10, 2022, to Complainant and his representative, the Agency
acknowledged receiving Complainant ’s email that he changed his mind, and advised that in the
coming weeks an acceptance or dismissal letter would be issued. Before the FAD was issued on February 28, 2022, Complainant did not explain why he withdrew his EEO complaint. The Agency, citing EEOC cases, dismissed the complaint since Complainant expressed a clear
intent to withdraw his EEO complaint, he could not revive it by rescinding his withdrawal. The instant appeal followed.
On appeal, Complainant argues that he discu ssed with his representative withdrawing his EEO
complaint , and as communicated in his email he changed his mind. He questions why the
withdrawal was effective since he did not sign anything certifying that he wanted to withdraw his EEO complaint. He expla ins he withdrew his EEO complaint because he was disappointed by
the way it was processing his EEO case.
In reply, the Agency argues that Complainant withdrew his complaint knowingly and
voluntarily, and has not shown he was coerced to do so.
ANALYSIS AND FINDINGS
Where a complainant “knowingly and voluntarily withdrew his complaint …. the Commission
considers the matter to have been finally abandoned.” Tellez v. Transportation, EEOC Request
No. 05930805 (Feb. 25, 1994). A complainant may not request reinstatement of an inf ormal
complaint unless the complaint was withdrawn pursuant to a settlement agreement . An exception
is a showing of coercion. Allen v. Department of Defense , EEOC Request No. 05940168 (May
25, 1995). This reasoning also applies to formal EEO complaints. T he dismissal of a complaint is
improper if the agency's action in misleading or misinforming the complainant resulted in the dismissal. Perry v. United States Postal Service , EEOC Appeal No. 01A45685 (October 17,
2005). Complainant concedes his representat ive withdrew his EEO complaint at his request.
Complainant does not contend he was coerced or misled into withdrawing his EEO complaint. Accordingly, the FAD 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 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 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 a ddressed 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 (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 thes e 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 13, 2022
Date | [
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316 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A31871_r.txt | 01A31871_r.txt | TXT | text/plain | 8,576 | Vernon R. Cook v. Department of Veterans Affairs 01A31871 February 5, 2004 . Vernon R. Cook, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency. | February 5, 2004 | Appeal Number: 01A31871
Case Facts:
Complainant initiated contact with the agency's EEO Office on September
16, 2002. On November 5, 2002, complainant filed a formal EEO complaint
wherein he claimed that he was discriminated against on the bases of
his disability (post-traumatic stress syndrome, major depression) and
in reprisal for his previous EEO activity under the Rehabilitation Act.
Complainant claimed that he was subjected to a hostile work environment.
The agency defined the claims in the complaint as being: (1) Whether
on the basis of disability and reprisal, management treated complainant
disparately when he refused to participate in misconduct of the management
staff; and (2) whether on the basis of disability and reprisal, management
treated complainant disparately when it failed to accommodate him.
By decision dated December 30, 2002, the agency dismissed the complaint
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 complainant claimed that the agency failed to give
him written notification that he was allowed to file an EEO complaint
within 45 calendar days of the dismissal of his 1999 Merit Systems
Protection Board (MSPB) appeal. However, the agency determined that
the MSPB appeal was brought under the independent-right-of-action
(IRA) provisions of the Whistleblower Protection Act. The agency
stated that therefore the provisions advising complainant to contact
an EEO Counselor within 45 days of receipt of the MSPB notice were
not appropriate. The agency determined that the doctrine of laches is
applicable based on complainant's failure to diligently pursue his claim.
The agency determined that over five years elapsed before complainant's
EEO contact on November 5, 2002, and therefore such contact was after
the expiration of the 45-day time limit for contacting an EEO Counselor.
Complainant subsequently filed an appeal with the Commission.
In response, the agency asserts that complainant waited more than six
years after the alleged incidents to initiate contact with an EEO
Counselor. The agency maintains that the notification requirement
set forth in 29 C.F.R. §1614.302(b) was not triggered because the
MSPB dismissed an IRA appeal and not a mixed-case appeal. The agency
states that complainant's MSPB appeal did not suggest that the alleged
retaliation was based upon anything other than complainant's protected
disclosures. The agency further argues that even if complainant's IRA
appeal could be considered a mixed case appeal, the instant claims are
nevertheless untimely. According to the agency, the date that complainant
filed his appeal with the MSPB, March 17, 1999, would be considered the
date that he contacted an EEO Counselor. The agency states complainant's
claims would still be untimely by more than three years. The agency
asserts with regard to complainant's claim that his medical condition
prevented him from timely contacting an EEO Counselor that complainant
pursued two EEO complaints during the relevant period and he failed to
document his condition.
Legal Analysis:
the Commission.
In response, the agency asserts that complainant waited more than six
years after the alleged incidents to initiate contact with an EEO
Counselor. The agency maintains that the notification requirement
set forth in 29 C.F.R. §1614.302(b) was not triggered because the
MSPB dismissed an IRA appeal and not a mixed-case appeal. The agency
states that complainant's MSPB appeal did not suggest that the alleged
retaliation was based upon anything other than complainant's protected
disclosures. The agency further argues that even if complainant's IRA
appeal could be considered a mixed case appeal, the instant claims are
nevertheless untimely. According to the agency, the date that complainant
filed his appeal with the MSPB, March 17, 1999, would be considered the
date that he contacted an EEO Counselor. The agency states complainant's
claims would still be untimely by more than three years. The agency
asserts with regard to complainant's claim that his medical condition
prevented him from timely contacting an EEO Counselor that complainant
pursued two EEO complaints during the relevant period and he failed to
document his condition.
EEOC Regulation 29 C.F.R. §1614.302(b) provides in relevant part that:
If a person files a mixed case appeal with the MSPB instead of a mixed
case complaint and the MSPB dismisses the appeal for jurisdictional
reasons, the agency shall promptly notify the individual in writing of
the right to contact an EEO counselor within 45 days of receipt of this
notice and to file an EEO complaint, subject to §1614.107. The date on
which the person filed his or her appeal with MSPB shall be deemed to
be the date of initial contact with the counselor.
Initially, we note that the claims set forth in this complaint address
many alleged incidents that occurred during the period of December 26,
1994 - June 1997. Our review of the MSPB appeal filed by complainant on
March 17, 1999, reveals that complainant raised claims of discrimination
and thus the submission was a mixed case appeal.
Final Decision:
Accordingly, March 17, 1999, the date that complainant filed his MSPB appeal is considered to be the date that complainant initiated contact with an EEO Counselor. We observe that the alleged incidents all occurred more than 45 days before March 17, 1999. We find that complainant has failed to submit adequate justification for an extension of the 45-day limitation period for contacting an EEO Counselor. Therefore, we find that the complaint was properly dismissed for untimely EEO Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). The agency's decision dismissing complainant's complaint is AFFIRMED. | Vernon R. Cook v. Department of Veterans Affairs
01A31871
February 5, 2004
.
Vernon R. Cook,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A31871
Agency No. 200M-02-104986
DECISION
Complainant initiated contact with the agency's EEO Office on September
16, 2002. On November 5, 2002, complainant filed a formal EEO complaint
wherein he claimed that he was discriminated against on the bases of
his disability (post-traumatic stress syndrome, major depression) and
in reprisal for his previous EEO activity under the Rehabilitation Act.
Complainant claimed that he was subjected to a hostile work environment.
The agency defined the claims in the complaint as being: (1) Whether
on the basis of disability and reprisal, management treated complainant
disparately when he refused to participate in misconduct of the management
staff; and (2) whether on the basis of disability and reprisal, management
treated complainant disparately when it failed to accommodate him.
By decision dated December 30, 2002, the agency dismissed the complaint
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 complainant claimed that the agency failed to give
him written notification that he was allowed to file an EEO complaint
within 45 calendar days of the dismissal of his 1999 Merit Systems
Protection Board (MSPB) appeal. However, the agency determined that
the MSPB appeal was brought under the independent-right-of-action
(IRA) provisions of the Whistleblower Protection Act. The agency
stated that therefore the provisions advising complainant to contact
an EEO Counselor within 45 days of receipt of the MSPB notice were
not appropriate. The agency determined that the doctrine of laches is
applicable based on complainant's failure to diligently pursue his claim.
The agency determined that over five years elapsed before complainant's
EEO contact on November 5, 2002, and therefore such contact was after
the expiration of the 45-day time limit for contacting an EEO Counselor.
Complainant subsequently filed an appeal with the Commission.
In response, the agency asserts that complainant waited more than six
years after the alleged incidents to initiate contact with an EEO
Counselor. The agency maintains that the notification requirement
set forth in 29 C.F.R. §1614.302(b) was not triggered because the
MSPB dismissed an IRA appeal and not a mixed-case appeal. The agency
states that complainant's MSPB appeal did not suggest that the alleged
retaliation was based upon anything other than complainant's protected
disclosures. The agency further argues that even if complainant's IRA
appeal could be considered a mixed case appeal, the instant claims are
nevertheless untimely. According to the agency, the date that complainant
filed his appeal with the MSPB, March 17, 1999, would be considered the
date that he contacted an EEO Counselor. The agency states complainant's
claims would still be untimely by more than three years. The agency
asserts with regard to complainant's claim that his medical condition
prevented him from timely contacting an EEO Counselor that complainant
pursued two EEO complaints during the relevant period and he failed to
document his condition.
EEOC Regulation 29 C.F.R. §1614.302(b) provides in relevant part that:
If a person files a mixed case appeal with the MSPB instead of a mixed
case complaint and the MSPB dismisses the appeal for jurisdictional
reasons, the agency shall promptly notify the individual in writing of
the right to contact an EEO counselor within 45 days of receipt of this
notice and to file an EEO complaint, subject to §1614.107. The date on
which the person filed his or her appeal with MSPB shall be deemed to
be the date of initial contact with the counselor.
Initially, we note that the claims set forth in this complaint address
many alleged incidents that occurred during the period of December 26,
1994 - June 1997. Our review of the MSPB appeal filed by complainant on
March 17, 1999, reveals that complainant raised claims of discrimination
and thus the submission was a mixed case appeal. Accordingly, March 17,
1999, the date that complainant filed his MSPB appeal is considered to
be the date that complainant initiated contact with an EEO Counselor.
We observe that the alleged incidents all occurred more than 45 days
before March 17, 1999. We find that complainant has failed to submit
adequate justification for an extension of the 45-day limitation period
for contacting an EEO Counselor. Therefore, we find that the complaint
was properly dismissed for untimely EEO Counselor contact pursuant to
29 C.F.R. § 1614.107(a)(2).
The agency's 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
February 5, 2004
__________________
Date
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317 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A44839.txt | 01A44839.txt | TXT | text/plain | 8,773 | Air Force Exchange Service 01A44839 November 8, 2004 . Sharon R. Watkins, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Army & Air Force Exchange Service (AAFES), Agency. | November 8, 2004 | Appeal Number: 01A44839
Complaint Allegations:
In her complaint, complainant alleged that the agency subjected her to harassment on the bases of race (African-American), sex (female), and disability (Post Traumatic Stress Disorder and Major Depressive Disorder) when her supervisor (S1) sexually assaulted her, her male coworkers drew obscene pictures and made jokes daily about the assault, and her manager mentioned S1's name and stated that complainant always had a poor relationship with S1. 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.
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. In her complaint, complainant
alleged that the agency subjected her to harassment on the bases of race
(African-American), sex (female), and disability (Post Traumatic Stress
Disorder and Major Depressive Disorder) when her supervisor (S1) sexually
assaulted her, her male coworkers drew obscene pictures and made jokes
daily about the assault, and her manager mentioned S1's name and stated
that complainant always had a poor relationship with S1.
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 record discloses that the alleged harassment occurred through May
14, 2003, when complainant felt that she could no longer function in
the workplace and requested leave. The record contains electronic mail
(e-mail) communication between complainant and a friend at another agency
facility who appears to investigate EEO complaints for the agency (C1).
In an e-mail dated May 1, 2003, complainant indicated that she wanted
to file a discrimination complaint against her manager and asked C1
about the steps of the EEO process. In an e-mail dated May 5, 2003,
C1 informed complainant that she should contact an EEO Counselor at
her facility to initiate the EEO process.<1> The EEO Counselor's
Report indicates that complainant initiated contact on July 10, 2003,
which is beyond the forty-five (45) day limitation period. In addition,
the Report indicates that complainant initiated contact outside of the
regulatory timeframe because she was afraid to come forward. However,
complainant stated that her mental state was impaired and that she was
no longer in the workplace so she did not have access to information on
the complaint process. In addition, complainant provided an affidavit
from her psychiatrist stating that complainant was severely incapacitated
by Anxiety when she was referred to him in June 2003 and that she was
unable to return to work until September 2003. In response, the agency
stated that, in January 1999, complainant was provided Sexual Harassment
training that contained information on EEO complaint procedures and
Counselor contact information. The Sexual Harassment trainer provided
a declaration regarding the contents of the course. In addition, the
agency provided copies of EEO posters containing the deadline information
as well as Counselor contact information and identifying pictures that
were posted in locked official bulletin boards.
We find that complainant has not presented persuasive arguments or
evidence to warrant an extension of the time limit for initiating
EEO Counselor contact. Complainant contacted a friend, C1, to obtain
information about the EEO process on May 1 and, on May 5, was informed
that she should contact an EEO Counselor to initiate the EEO process.
Complainant was in the workplace until May 14 so she had an opportunity
to view the EEO posters in the bulletin boards and attempt to locate
an EEO Counselor within a timely manner. In addition, complainant was
informed of the EEO process several years earlier in training. Further,
complainant failed to show that she was totally incapacitated so as to
render her unable to initiate EEO contact once she left the workplace.
Final Decision:
Accordingly, the agency's final decision dismissing complainant's complaint is affirmed. | Sharon R. Watkins v. Army & Air Force Exchange Service
01A44839
November 8, 2004
.
Sharon R. Watkins,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
Army & Air Force Exchange Service (AAFES),
Agency.
Appeal No. 01A44839
Agency No. 03-104
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. In her complaint, complainant
alleged that the agency subjected her to harassment on the bases of race
(African-American), sex (female), and disability (Post Traumatic Stress
Disorder and Major Depressive Disorder) when her supervisor (S1) sexually
assaulted her, her male coworkers drew obscene pictures and made jokes
daily about the assault, and her manager mentioned S1's name and stated
that complainant always had a poor relationship with S1.
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 record discloses that the alleged harassment occurred through May
14, 2003, when complainant felt that she could no longer function in
the workplace and requested leave. The record contains electronic mail
(e-mail) communication between complainant and a friend at another agency
facility who appears to investigate EEO complaints for the agency (C1).
In an e-mail dated May 1, 2003, complainant indicated that she wanted
to file a discrimination complaint against her manager and asked C1
about the steps of the EEO process. In an e-mail dated May 5, 2003,
C1 informed complainant that she should contact an EEO Counselor at
her facility to initiate the EEO process.<1> The EEO Counselor's
Report indicates that complainant initiated contact on July 10, 2003,
which is beyond the forty-five (45) day limitation period. In addition,
the Report indicates that complainant initiated contact outside of the
regulatory timeframe because she was afraid to come forward. However,
complainant stated that her mental state was impaired and that she was
no longer in the workplace so she did not have access to information on
the complaint process. In addition, complainant provided an affidavit
from her psychiatrist stating that complainant was severely incapacitated
by Anxiety when she was referred to him in June 2003 and that she was
unable to return to work until September 2003. In response, the agency
stated that, in January 1999, complainant was provided Sexual Harassment
training that contained information on EEO complaint procedures and
Counselor contact information. The Sexual Harassment trainer provided
a declaration regarding the contents of the course. In addition, the
agency provided copies of EEO posters containing the deadline information
as well as Counselor contact information and identifying pictures that
were posted in locked official bulletin boards.
We find that complainant has not presented persuasive arguments or
evidence to warrant an extension of the time limit for initiating
EEO Counselor contact. Complainant contacted a friend, C1, to obtain
information about the EEO process on May 1 and, on May 5, was informed
that she should contact an EEO Counselor to initiate the EEO process.
Complainant was in the workplace until May 14 so she had an opportunity
to view the EEO posters in the bulletin boards and attempt to locate
an EEO Counselor within a timely manner. In addition, complainant was
informed of the EEO process several years earlier in training. Further,
complainant failed to show that she was totally incapacitated so as to
render her unable to initiate EEO contact once she left the workplace.
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
November 8, 2004
__________________
Date
1We note that C1 does not mention the 45-day
time limit to initiate EEO contact in the e-mail message.
| [
"Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)",
"29 C.F.R. § 1614.107(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"
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0.06918068230... |
318 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a42400.txt | 01a42400.txt | TXT | text/plain | 10,775 | Joy X. Harris v. Department of Veterans Affairs 01A42400 June 24, 2004 . Joy X. Harris, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency. | June 24, 2004 | Appeal Number: 01A42400
Case Facts:
Complainant filed a timely appeal with this Commission from the final
agency decision dated February 13, 2004, 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.
On July 1, 2003, complainant contacted the EEO office claiming that she
was discriminated in reprisal for prior protected activity when she was
terminated from her employment as a fee-based nurse. Complainant also
stated to the EEO Counselor that an agency official refused to provide
her information about her EEO rights, and that she did not know about
the 45-day time limit to contact an EEO Counselor.
In a memorandum dated August 6, 2003, complainant reiterated that
she was unaware of the time limits for contacting an EEO Counselor.
Complainant also stated that her request to see her EEO file was denied
and she was informed that as a fee-based nurse she has no rights.
Complainant stated that after researching her rights, she filed the
instant formal complaint on November 3, 2003.
On February 13, 2004, the agency issued a final decision dismissing the
complaint for untimely EEO Counselor contact. The agency determined
that complainant received notification of her termination on May 13,
2003, but that complainant failed to contact an EEO Counselor until July
1, 2003, which was beyond the forty-five (45) day limitation period.
The agency noted that complainant was cognizant of the time limitation
for making EEO Counselor contact, because she had previously participated
in the EEO complaint 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
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 determines that the agency failed to produce evidence
showing that complainant had actual or constructive notice of the time
limit for contacting an EEO Counselor. We note that the record contains
a statement of the EEO Counselor asserting that the agency's training
records indicate that complainant had not received EEO training since
her hiring in 1999. Further, while the agency contends that complainant
was aware of the time limits for contacting an EEO Counselor due to her
prior participation in the EEO process, we find that this prior activity,
alone, is not indicative of knowledge of the time limit, since the issue
would not arise if complainant previously contacted an EEO Counselor
within 45 days of the alleged discriminatory incident/action. Clearly,
it is the burden of the agency to have evidence or proof in support
of its final decision. See Marshall v. Department of the Navy, EEOC
Request No. 05910685 (September 6, 1991). The agency failed to submit
evidence to support its finding that complainant was aware of the time
limits for seeking EEO counseling.
Final Decision:
Accordingly, the agency's decision to dismiss complainant's complaint pursuant to 29 C.F.R. § 1614.107(a)(2) is REVERSED. | Joy X. Harris v. Department of Veterans Affairs
01A42400
June 24, 2004
.
Joy X. Harris,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A42400
Agency No. 200M-0657-02003103496
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated February 13, 2004, 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.
On July 1, 2003, complainant contacted the EEO office claiming that she
was discriminated in reprisal for prior protected activity when she was
terminated from her employment as a fee-based nurse. Complainant also
stated to the EEO Counselor that an agency official refused to provide
her information about her EEO rights, and that she did not know about
the 45-day time limit to contact an EEO Counselor.
In a memorandum dated August 6, 2003, complainant reiterated that
she was unaware of the time limits for contacting an EEO Counselor.
Complainant also stated that her request to see her EEO file was denied
and she was informed that as a fee-based nurse she has no rights.
Complainant stated that after researching her rights, she filed the
instant formal complaint on November 3, 2003.
On February 13, 2004, the agency issued a final decision dismissing the
complaint for untimely EEO Counselor contact. The agency determined
that complainant received notification of her termination on May 13,
2003, but that complainant failed to contact an EEO Counselor until July
1, 2003, which was beyond the forty-five (45) day limitation period.
The agency noted that complainant was cognizant of the time limitation
for making EEO Counselor contact, because she had previously participated
in the EEO complaint process.
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 determines that the agency failed to produce evidence
showing that complainant had actual or constructive notice of the time
limit for contacting an EEO Counselor. We note that the record contains
a statement of the EEO Counselor asserting that the agency's training
records indicate that complainant had not received EEO training since
her hiring in 1999. Further, while the agency contends that complainant
was aware of the time limits for contacting an EEO Counselor due to her
prior participation in the EEO process, we find that this prior activity,
alone, is not indicative of knowledge of the time limit, since the issue
would not arise if complainant previously contacted an EEO Counselor
within 45 days of the alleged discriminatory incident/action. Clearly,
it is the burden of the agency to have evidence or proof in support
of its final decision. See Marshall v. Department of the Navy, EEOC
Request No. 05910685 (September 6, 1991). The agency failed to submit
evidence to support its finding that complainant was aware of the time
limits for seeking EEO counseling.
Accordingly, the agency's decision to dismiss complainant's complaint
pursuant to 29 C.F.R. § 1614.107(a)(2) is REVERSED. The complaint is
REMANDED to the agency for further processing in accordance with this
decision and 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
June 24 ,2004
__________________
Date
| [
"Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)",
"Marshall v. Department of the Navy, EEOC Request No. 05910685 (September 6, 1991)",
"29 C.F.R. § 1614.105(a)",
"29 C.F.R. § 1614.107(a)",
"29 C.F.R. § 1614.108",
"29 C.F.R. § 1614.503(a)",
"29 C.F.R. § 1614.503(g)",
"2... | [
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319 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01982767.txt | 01982767.txt | TXT | text/plain | 9,089 | March 5, 1999 | Appeal Number: 01982767
Legal Analysis:
The Commission finds that the agency's January 12, 1998 decision
dismissing appellant's complaint on the grounds of untimely EEO counselor
contact, is proper pursuant to 29 C.F.R. §1614.107(b).
The record shows that appellant, a Postmaster, sought EEO counseling
on August 26, 1997, alleging that she had been discriminated against
on the bases of race (not specified),<1> physical disability (physical
pain, severe headaches, undue stress and insomnia) and mental disability
(occasional loss of memory, nightmares and depression) when: (1) on or
about September 1, 1990, employees of the Matewan, West Virginia Post
Office plotted and conspired against appellant; and, (2) on an unspecified
date, after suspending two employees for illegal activities, appellant
received threats and warnings against her life which caused appellant
to relocate and work at the Charleston, West Virginia Post Office.
The agency issued a final decision dismissing the complaint on the
grounds of untimely EEO counselor contact.<2> The agency found that
appellant had sought EEO counseling "approximately seven years after
the alleged discriminatory action began on or about September 1, 1990".
The agency also found that appellant had failed to show that she was
unaware of the time limit for EEO counselor contact because "exhibits
to file show that on March 21, 1991, all postmasters were forwarded an
EEO poster to be permanently posted on the Employee Bulletin Board.
As postmaster of the Matewan, WV post office, [appellant] would have
received the EEO poster. Furthermore, affidavit to file indicates that an
EEO poster with appropriate EEO counselor contact time frames was clearly
posted for the several months (dates unspecified) that [appellant] worked
at her new work site in the Charleston, WV district office. Furthermore,
the EEO Counselor's Inquiry Report indicates that an EEO poster was on
display at [appellant's] work place". On appeal, appellant contends that
"this is a continuing violation of [her] rights" because "to this day
[she has] to continue to watch over [her] back at all times".
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). Appellant contends
that the discrimination against her has been continuous. A review of
her allegations shows that she claims that the discrimination started
in September 1990 and that to this day she has to watch over her back.
Nevertheless, a review of the complaint as well as the nature of the
alleged actions in issue, persuades the Commission that appellant was
aware of the alleged discriminatory events at the time they took place.
However, she did not seek EEO counseling until August 26, 1997, over seven
years after the alleged discrimination took place, even though EEO posters
with the time limits for EEO counselor contact, were available in the
facilities where she worked as postmaster. Under these circumstances,
appellant should have sought EEO counseling within the prescribed time
limit and is unable to claim, successfully, a continuing violation.
Appellant failed to submit evidence sufficient to establish that she was
medically incapacitated and unable to contact the counselor in a timely
manner. The agency's decision dismissing the complaint on the grounds
of untimely EEO counselor is AFFIRMED. | Loretta A. Howard v. United States Postal Service
01982767
March 5, 1999
Loretta A. Howard, )
Appellant, )
)
v. ) Appeal No. 01982767
) Agency No. 4-D-250-0151-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The Commission finds that the agency's January 12, 1998 decision
dismissing appellant's complaint on the grounds of untimely EEO counselor
contact, is proper pursuant to 29 C.F.R. §1614.107(b).
The record shows that appellant, a Postmaster, sought EEO counseling
on August 26, 1997, alleging that she had been discriminated against
on the bases of race (not specified),<1> physical disability (physical
pain, severe headaches, undue stress and insomnia) and mental disability
(occasional loss of memory, nightmares and depression) when: (1) on or
about September 1, 1990, employees of the Matewan, West Virginia Post
Office plotted and conspired against appellant; and, (2) on an unspecified
date, after suspending two employees for illegal activities, appellant
received threats and warnings against her life which caused appellant
to relocate and work at the Charleston, West Virginia Post Office.
The agency issued a final decision dismissing the complaint on the
grounds of untimely EEO counselor contact.<2> The agency found that
appellant had sought EEO counseling "approximately seven years after
the alleged discriminatory action began on or about September 1, 1990".
The agency also found that appellant had failed to show that she was
unaware of the time limit for EEO counselor contact because "exhibits
to file show that on March 21, 1991, all postmasters were forwarded an
EEO poster to be permanently posted on the Employee Bulletin Board.
As postmaster of the Matewan, WV post office, [appellant] would have
received the EEO poster. Furthermore, affidavit to file indicates that an
EEO poster with appropriate EEO counselor contact time frames was clearly
posted for the several months (dates unspecified) that [appellant] worked
at her new work site in the Charleston, WV district office. Furthermore,
the EEO Counselor's Inquiry Report indicates that an EEO poster was on
display at [appellant's] work place". On appeal, appellant contends that
"this is a continuing violation of [her] rights" because "to this day
[she has] to continue to watch over [her] back at all times".
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). Appellant contends
that the discrimination against her has been continuous. A review of
her allegations shows that she claims that the discrimination started
in September 1990 and that to this day she has to watch over her back.
Nevertheless, a review of the complaint as well as the nature of the
alleged actions in issue, persuades the Commission that appellant was
aware of the alleged discriminatory events at the time they took place.
However, she did not seek EEO counseling until August 26, 1997, over seven
years after the alleged discrimination took place, even though EEO posters
with the time limits for EEO counselor contact, were available in the
facilities where she worked as postmaster. Under these circumstances,
appellant should have sought EEO counseling within the prescribed time
limit and is unable to claim, successfully, a continuing violation.
Appellant failed to submit evidence sufficient to establish that she was
medically incapacitated and unable to contact the counselor in a timely
manner. The agency's decision dismissing the complaint on the grounds
of untimely EEO counselor 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 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:
Mar 5, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 On appeal, appellant indicates that she is black.
2 After appellant raised the issue of her removal in her formal complaint,
the agency did not address said issue in the instant final decision.
The record shows that said issue was referred for processing to the
Capital District and appellant was issued a final interview for the
removal action with MSPB rights. | [
"Cochran v. United States Postal Service, EEOC Request No. 05920399 (June 18, 1992)"
] | [
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320 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01996671.txt | 01996671.txt | TXT | text/plain | 9,047 | Caroline M. Knecht v. Department of the Army 01996671 July 13, 2001 . Caroline M. Knecht, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency. | July 13, 2001 | Appeal Number: 01996671
Case Facts:
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning 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. The appeal is accepted pursuant
to 29 C.F.R. § 1614.405. Complainant filed a formal complaint in which
she alleged discrimination on the basis of reprisal (prior EEO activity
under Title VII) when she received a Successful Level 2" rating on her
annual performance appraisal on May 3, 1999.
For the following reasons, the Commission AFFIRMS the final agency
decision dismissing complainant's complaint.
The record reveals that complainant, a Program Assistant at the
agency's United States Military Academy in West Point, New York,
sought EEO counseling on June 24, 1999. Complainant filed a formal EEO
complaint with the agency on August 11, 1999, alleging that the agency
had discriminated against her as referenced above. The agency, in a
final agency decision dated August 11, 1999, notified complainant that
her complaint was being dismissed for untimely EEO counselor contact.
It is from this decision that complainant appeals.
On appeal, complainant contends that she tried to resolve this matter
by first going through the agency's mandatory chain of command.
Complainant further contends that it was not until she realized that the
matter would not be resolved at this level that she sought EEO counseling.
Accordingly, complainant sought EEO counseling on June 24, 1999,
which was fifty-two (52) days after the alleged discriminatory event.
The agency requests that we affirm its FAD.
Legal Analysis:
the Commission AFFIRMS the final agency
decision dismissing complainant's complaint.
The record reveals that complainant, a Program Assistant at the
agency's United States Military Academy in West Point, New York,
sought EEO counseling on June 24, 1999. Complainant filed a formal EEO
complaint with the agency on August 11, 1999, alleging that the agency
had discriminated against her as referenced above. The agency, in a
final agency decision dated August 11, 1999, notified complainant that
her complaint was being dismissed for untimely EEO counselor contact.
It is from this decision that complainant appeals.
On appeal, complainant contends that she tried to resolve this matter
by first going through the agency's mandatory chain of command.
Complainant further contends that it was not until she realized that the
matter would not be resolved at this level that she sought EEO counseling.
Final Decision:
Accordingly, complainant sought EEO counseling on June 24, 1999, which was fifty-two (52) days after the alleged discriminatory event. The agency requests that we affirm its FAD. 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. 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. The record discloses that the alleged discriminatory event occurred on May 3, 1999, when complainant received a copy of her performance appraisal. We note that complainant asserts that, but for her attempts to resolve the situation using the agency's chain of command, which included scheduling of meetings with various supervisors and directors, she would have sought EEO counselor contact in a timely manner. However, in support of this contention she fails to provide documentation that this procedure is mandatory or accepted procedure at the agency. Complainant also does not explain how the use of the agency's chain of command procedure prevented her from making initial EEO counselor contact within the forty-five (45) day limitation period. The record also states that there are posters, policy letters and memoranda pertaining to the EEO process posted conspicuously throughout the installation. Based on the foregoing, we find that the agency properly dismissed complainant's complaint due to untimely EEO counselor contact. The Commission also finds that because this was not the first time complainant was involved in the EEO process she knew or should have known that there was a forty-five (45) day limitation period to seek EEO counselor contact. In point of fact, complainant states that [s]ince 1996, I have gone to EEO, filed [an] administrative complaint . . . and sought corrective actions. We find that complainant has produced no persuasive arguments or evidence to warrant an extension of the time limit for initiating EEO counselor contact. Therefore, after a careful review of the record, including complainant's contentions on appeal, the agency's response, and arguments and evidence not specifically addressed in this decision, we find that complainant did not seek timely EEO counselor contact as required by EEO regulations. Accordingly, the agency's final decision dismissing complainant's complaint is AFFIRMED. | Caroline M. Knecht v. Department of the Army
01996671
July 13, 2001
.
Caroline M. Knecht,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01996671
Agency No. AHBRFO9906J0100
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning 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. The appeal is accepted pursuant
to 29 C.F.R. § 1614.405. Complainant filed a formal complaint in which
she alleged discrimination on the basis of reprisal (prior EEO activity
under Title VII) when she received a Successful Level 2" rating on her
annual performance appraisal on May 3, 1999.
For the following reasons, the Commission AFFIRMS the final agency
decision dismissing complainant's complaint.
The record reveals that complainant, a Program Assistant at the
agency's United States Military Academy in West Point, New York,
sought EEO counseling on June 24, 1999. Complainant filed a formal EEO
complaint with the agency on August 11, 1999, alleging that the agency
had discriminated against her as referenced above. The agency, in a
final agency decision dated August 11, 1999, notified complainant that
her complaint was being dismissed for untimely EEO counselor contact.
It is from this decision that complainant appeals.
On appeal, complainant contends that she tried to resolve this matter
by first going through the agency's mandatory chain of command.
Complainant further contends that it was not until she realized that the
matter would not be resolved at this level that she sought EEO counseling.
Accordingly, complainant sought EEO counseling on June 24, 1999,
which was fifty-two (52) days after the alleged discriminatory event.
The agency requests that we affirm its FAD.
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.
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. The record discloses that the alleged
discriminatory event occurred on May 3, 1999, when complainant received
a copy of her performance appraisal. We note that complainant asserts
that, but for her attempts to resolve the situation using the agency's
chain of command, which included scheduling of meetings with various
supervisors and directors, she would have sought EEO counselor contact
in a timely manner. However, in support of this contention she fails
to provide documentation that this procedure is mandatory or accepted
procedure at the agency. Complainant also does not explain how the
use of the agency's chain of command procedure prevented her from
making initial EEO counselor contact within the forty-five (45) day
limitation period. The record also states that there are posters, policy
letters and memoranda pertaining to the EEO process posted conspicuously
throughout the installation. Based on the foregoing, we find that the
agency properly dismissed complainant's complaint due to untimely EEO
counselor contact.
The Commission also finds that because this was not the first time
complainant was involved in the EEO process she knew or should have
known that there was a forty-five (45) day limitation period to seek EEO
counselor contact. In point of fact, complainant states that [s]ince
1996, I have gone to EEO, filed [an] administrative complaint . . . and
sought corrective actions. We find that complainant has produced no
persuasive arguments or evidence to warrant an extension of the time
limit for initiating EEO counselor contact.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we find that complainant did
not seek timely EEO counselor contact as required by EEO regulations.
Accordingly, 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
July 13, 2001
__________________
Date
| [
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"29 C.F.R. § 1614.107(a)",
"29 C.F.R. § 1614.604",
"29 C.F.R. § 1614.604(c)",
"42 U.S.C. § 2000e",
"29 U.S.C. §§ 791"
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321 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a02312.r.txt | 01a02312.r.txt | TXT | text/plain | 11,071 | October 29,
1999 | Appeal Number: 01A02312
Legal Analysis:
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 failed to submit any evidence to show
that complainant was provided with this notice, including the requisite
time limit to contact an EEO Counselor, at the time and in the place of
the alleged incident. Absent this evidence, we find that the record is
insufficient to determine the timeliness of complainant's EEO contact.
Final Decision:
Accordingly, the agency's decision to dismiss complainant's complaint due to untimely EEO contact is VACATED. | Diane Auriemma, )
Complainant, )
)
)
v. ) Appeal No. 01A02312
) Agency No. 4A-110-0142-99
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
Complainant appealed from the agency's decision dated October 29,
1999, dismissing her complaint due to untimely EEO contact, 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>
In the complaint, complainant alleged that while she was a Carrier
Supervisor at the Middle Village Station, the Station Manager never
gave her paperwork or instructions related to her position, whereas her
successor was allowed to be more involved with the carrier operation.
Complainant alleged that she relinquished her supervisory position in
October 1997, but in November 1998, she noticed that her successor was
given more responsibilities working with the carriers than she was.
The record contains the EEO Counselor's Report, wherein, complainant
indicated that she had no knowledge of the EEO process. Therein, the
EEO Counselor indicated that on July 20, 1999, he went to the Middle
Village Station, and noticed that there was no EEO poster posted, and
he, then, posted an EEO poster in the swing room and by the time clock.
The agency, in its decision, stated that complainant's May 17, 1999 EEO
contact with regard to the matter was beyond the 45-day time limit.
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 failed to submit any evidence to show
that complainant was provided with this notice, including the requisite
time limit to contact an EEO Counselor, at the time and in the place of
the alleged incident. Absent this evidence, we find that the record is
insufficient to determine the timeliness of complainant's EEO contact.
Accordingly, the agency's decision to dismiss complainant's complaint
due to untimely EEO contact is VACATED. The complaint is REMANDED to
the agency for further processing in accordance with this decision and
applicable regulations.
ORDER
The agency, within thirty (30) calendar days of the date this decision
becomes final, is ORDERED to investigate the issue of whether at the
time of the alleged incident, i.e., in or around November 1998, when
complainant noticed that her successor was given more responsibilities
than she was while she was in her supervisory position in October
1997, the agency posted EEO information on display at the Middle
Village Station, or in some other manner provided EEO information to
complainant, that specifically referred to the time limit for contacting
an EEO Counselor. The agency shall gather any other evidence necessary
to determine when complainant learned of the time limit for contacting
an EEO Counselor, including, but not limited to, statements from agency
officials, who were aware of the posting of EEO information at the time of
the alleged incident. Within thirty (30) calendar days of the date this
decision becomes final, the agency shall issue a new final decision or
notice of processing after it determines whether complainant had actual
or constructive notice of the time limit for contacting an EEO Counselor
or acted in a timely manner once she obtained actual or constructive
knowledge.
A copy of the new final agency decision or notice of processing 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 (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
(R0400)
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:
May 30, 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 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.
| [
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"29 C.F.R. § 1614.405",
"29 C.F.R. § 1614.604",
"29 C.F.R. § 1614.604(c)",
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322 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a20139.txt | 01a20139.txt | TXT | text/plain | 10,129 | Teresa A. Camden v. Department of the Navy 01A20139 February 13, 2002 . Teresa A. Camden, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency. | February 13, 2002 | Appeal Number: 01A20139
Case Facts:
Legal Analysis:
Upon review, the Commission finds that the complaint was improperly
dismissed pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO
Counselor contact. Complainant sought EEO counseling on March 9, 2001,
claiming that she had been discriminated against on the bases of sex
and age when:
(1) from February 2, 1998 to January 24, 2001, she was denied an
opportunity to gain experience and expertise necessary for advancement
when a male forester received a Y2K assignment involving computer
specialist duties and was assigned to an Information Technology (IT)
team instead of her;
(2) she was assigned the tasks of timekeeping, making travel arrangements,
filing correspondence, and making copies instead of being assigned
work available in her career field that would have enabled her to gain
experience and expertise necessary for advancement. Complainant stated
that these clerical tasks ended when she was assigned to the Personnel
Transition Office (PTO) in March 2000; and
(3) she was assigned to the PTO in March 2000, while a male computer
specialist without a degree in her code stayed in his position and was
allowed to continue to provide support to her code.
Subsequently, complainant filed a formal complaint concerning these
issues.
The agency issued a final decision dismissing the complaint for untimely
EEO Counselor contact after finding that complainant had failed to seek
EEO counseling within 45 days of the alleged discriminatory incidents.
Concerning claim (1) the agency noted that when in 1998, the male coworker
was assigned to an Information Technology team, complainant confronted
her supervisor and reminded him of the Woman's Program and the Strategic
Plan Workforce Strategies Program which emphasized the recruitment and
development of minorities and women. Regarding claim (2) the agency
noted that when in 1998, complainant was assigned clerical duties,
she confronted her supervisor to remind him that she had a degree in
Computer Science. Concerning claim (3), the agency found that although
complainant was assigned to the PTO in January - March 2000, she did not
seek EEO counseling until March 9, 2001. The agency found that although
complainant was aware of the alleged discriminatory events in February
1998, and March 2000, respectively, she did not seek EEO counseling
until March 9, 2001, beyond the 45-day time limit.
On appeal, complainant contends that a named EEO official she contacted,
as well as the union steward, and the union president advised her to wait
until she had proof of the discrimination against her. Complainant
states that [J]ust because I was being discriminated against, didn't
necessarily mean that I was. That's what I was told by everyone I
went to. The EEO officer [identified by name], told me You need
proof. I just couldn't prove it. [The named EEO official] told me I
had to wait until I had proof. Complainant further asserts that she
contacted several Union stewards and a Union officer on occasions when
she determined that she was the victim of discrimination, and that on
each occasion, they informed her that I needed proof.
Given the present record, we are unable to ascertain whether complainant
was informed by a named agency EEO official that she could not
pursue the EEO complaint process without proof of discrimination.
Apart from complainant's assertion on appeal regarding this matter,
the record contains no evidence reflecting whether or not complainant
was so advised.
Final Decision:
Accordingly, the agency's final decision dismissing the complaint for untimely EEO Counselor is hereby VACATED. | Teresa A. Camden v. Department of the Navy
01A20139
February 13, 2002
.
Teresa A. Camden,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A20139
Agency No. DON-01-00164-002
DECISION
Upon review, the Commission finds that the complaint was improperly
dismissed pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO
Counselor contact. Complainant sought EEO counseling on March 9, 2001,
claiming that she had been discriminated against on the bases of sex
and age when:
(1) from February 2, 1998 to January 24, 2001, she was denied an
opportunity to gain experience and expertise necessary for advancement
when a male forester received a Y2K assignment involving computer
specialist duties and was assigned to an Information Technology (IT)
team instead of her;
(2) she was assigned the tasks of timekeeping, making travel arrangements,
filing correspondence, and making copies instead of being assigned
work available in her career field that would have enabled her to gain
experience and expertise necessary for advancement. Complainant stated
that these clerical tasks ended when she was assigned to the Personnel
Transition Office (PTO) in March 2000; and
(3) she was assigned to the PTO in March 2000, while a male computer
specialist without a degree in her code stayed in his position and was
allowed to continue to provide support to her code.
Subsequently, complainant filed a formal complaint concerning these
issues.
The agency issued a final decision dismissing the complaint for untimely
EEO Counselor contact after finding that complainant had failed to seek
EEO counseling within 45 days of the alleged discriminatory incidents.
Concerning claim (1) the agency noted that when in 1998, the male coworker
was assigned to an Information Technology team, complainant confronted
her supervisor and reminded him of the Woman's Program and the Strategic
Plan Workforce Strategies Program which emphasized the recruitment and
development of minorities and women. Regarding claim (2) the agency
noted that when in 1998, complainant was assigned clerical duties,
she confronted her supervisor to remind him that she had a degree in
Computer Science. Concerning claim (3), the agency found that although
complainant was assigned to the PTO in January - March 2000, she did not
seek EEO counseling until March 9, 2001. The agency found that although
complainant was aware of the alleged discriminatory events in February
1998, and March 2000, respectively, she did not seek EEO counseling
until March 9, 2001, beyond the 45-day time limit.
On appeal, complainant contends that a named EEO official she contacted,
as well as the union steward, and the union president advised her to wait
until she had proof of the discrimination against her. Complainant
states that [J]ust because I was being discriminated against, didn't
necessarily mean that I was. That's what I was told by everyone I
went to. The EEO officer [identified by name], told me You need
proof. I just couldn't prove it. [The named EEO official] told me I
had to wait until I had proof. Complainant further asserts that she
contacted several Union stewards and a Union officer on occasions when
she determined that she was the victim of discrimination, and that on
each occasion, they informed her that I needed proof.
Given the present record, we are unable to ascertain whether complainant
was informed by a named agency EEO official that she could not
pursue the EEO complaint process without proof of discrimination.
Apart from complainant's assertion on appeal regarding this matter,
the record contains no evidence reflecting whether or not complainant
was so advised. Accordingly, the agency's final decision dismissing the
complaint for untimely EEO Counselor is hereby VACATED. The complaint is
hereby REMANDED for further processing in accordance with the Order below.
ORDER
The agency is ORDERED to take the following actions:
The agency shall conduct a supplemental investigation to determine whether
complainant contacted EEO officials prior to March 9, 2001, and whether
complainant was advised by an agency EEO official that she need proof
to pursue her EEO complaint. The supplemental investigation shall include
affidavits from any agency EEO officials who corresponded with complainant
during pre-complaint counseling, and what information they provided to
complainant on the issue of the timeliness of EEO Counselor contact.
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall issue a notice of processing and/or a new FAD regarding
complainant's complaint.
A copy of the agency's notice of processing and/or new FAD regarding
the complaint 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
February 13, 2002
Date
| [
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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",
"29 U.S.C. §§ 791"
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323 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01992446.txt | 01992446.txt | TXT | text/plain | 8,931 | January 14, 1998 | Appeal Number: 01992446
Legal Analysis:
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).
In her complaint, Complainant alleged that she had been harassed from
November 1992 through April 1996, and forced to retire on June 3, 1996.
However, she did not seek EEO counseling until October 1997. To excuse
her untimeliness, Complainant claims that although she was previously
involved in prior EEO activity, such activity did not reach the formal
stage. She also claims that she was unaware that her forced retirement
was an issue which could be brought to the attention of an EEO counselor.
We are not persuaded by Complainant's arguments. Based on the foregoing,
we find that Complainant suspected or should have reasonably suspected
discrimination before the 45 days preceding her initial EEO counselor
contact on October 8, 1997. We determine that Complainant should have
sought EEO counseling within the 45-day time limit provided by EEOC
Regulations but failed to do so. Moreover, she has failed to show
that she was unaware of her EEO rights and obligations. Therefore,
the dismissal of the complaint was proper and is hereby AFFIRMED. | Mary M. Leight, )
Complainant, )
)
v. ) Appeal No. 01992446
) Agency No. 97-1112
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
We find that the agency's January 14, 1998 final decision dismissing
the complaint on the grounds of untimely EEO counselor contact is proper
pursuant to the provisions of 29 C.F.R §1614.107(a)(2).
The record shows that Complainant sought EEO counseling on October 8,
1997, alleging that she had been discriminated against on the bases of age
(none specified) and reprisal when: (1) she was forced to retire on June
3, 1996; and, (2) she was harassed and not promoted on February 24, 1993.
On November 12, 1997, Complainant filed a formal complaint of
discrimination alleging that she had been discriminated against on the
bases of age (1/23/38) and reprisal for prior EEO activity when: (1) she
was not promoted on February 24, 1993; (2) she was forced to retire on
June 3, 1996; (3) she was harassed from November 1992 through April 30,
1996; and, (4) she was subjected to
hostile work conditions from November 1992 through April 30, 1996.
The agency accepted the complaint for investigation. After the
investigation was completed, the matter was assigned for a hearing
before an EEOC Administrative Judge (AJ) . On December 31, 1998, the AJ
recommended that the agency dismiss Complainant's complaint for untimely
EEO Counselor contact. The AJ noted that it was reasonable to conclude
that Complainant had knowledge of the applicable time limits because
she had previously utilized the EEO process.
On January 14, 1999, the agency issued a final decision, dismissing
Complainant's complaint for failure to timely contact an EEO Counselor.
The record in this case contains a copy of a poster that the agency
indicates is posted at the facility where Complainant was employed, that
addresses the limitation period for timely contacting an EEO Counselor.
On appeal, Complainant contends that her prior EEO contact occurred more
than 3 years before her forced retirement. Complainant also contends that
she did not receive all applicable information on the EEO process as a
result of that isolated instance, but rather received only an undated 2
page memorandum and VA Form 4939. Moreover, Complainant contends that
because this prior matter was resolved informally, she never completed
a formal complaint and never knew the scope of conduct cognizable by
the EEOC or the applicable time limits. Complainant further contends
that she was unaware that a forced retirement could be discussed with
the EEO office.
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).
In her complaint, Complainant alleged that she had been harassed from
November 1992 through April 1996, and forced to retire on June 3, 1996.
However, she did not seek EEO counseling until October 1997. To excuse
her untimeliness, Complainant claims that although she was previously
involved in prior EEO activity, such activity did not reach the formal
stage. She also claims that she was unaware that her forced retirement
was an issue which could be brought to the attention of an EEO counselor.
We are not persuaded by Complainant's arguments. Based on the foregoing,
we find that Complainant suspected or should have reasonably suspected
discrimination before the 45 days preceding her initial EEO counselor
contact on October 8, 1997. We determine that Complainant should have
sought EEO counseling within the 45-day time limit provided by EEOC
Regulations but failed to do so. Moreover, she has failed to show
that she was unaware of her EEO rights and obligations. Therefore,
the dismissal of the complaint was proper and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS
OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. §1614.405). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the
absence of a legible postmark, the request to reconsider shall be deemed
timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. §1614.604).
The request or opposition must also include proof of service on the
other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. §1614.604(c).
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 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:
November 18, 1999
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:
____________________
| [
"Cochran v. United States Postal Service, EEOC Request No. 05920399 (June 18, 1992)"
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324 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120161131.r.txt | 0120161131.r.txt | TXT | text/plain | 9,448 | Solomon B.,1 Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency. | January 20, 2016 | Appeal Number: 0120161131
Background:
In June 2014, Complainant, who was working for the Agency as a Benefits Authorizer, applied for and was selected for a Claims Authorizer position at the Workload Support Unit, Mid-America Program Service Center (MAMPSC) in Kansas City, Kansas. He began his new position on July 15, 2014.
On August 27, 2015, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On November 17, 2015, Complainant filed a formal EEO complaint claiming he was subjected to harassment/a hostile work environment on the basis of disability beginning in November 2014 and continuing until he was forced to request to return to his prior Benefits Authorizer position. He resumed his Benefits Authorizer position on June 1, 2015.
In its January 20, 2016 final decision, 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 Complainant's initial EEO counselor contact was on August 27, 2015, which it found to be well beyond the 45-day limitation period from the most recent event of alleged harassment.
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.
The alleged discriminatory event occurred beginning in November 2014 through Complainant's return to his former position effective June 1, 2015. However, Complainant did not initiate contact with an EEO Counselor until August 27, 2015, well beyond the 45-day limitation period.
On appeal, Complainant argues that he had no actual or constructive knowledge of the limitation period for contacting an EEO counselor. Complainant also asserts that he was "working with management and union officials during this time...my filing only happened when management and union officials had already caused lengthy delays in responding to my concerns and queries. Only when I contacted an EEO Counselor was I informed of the limited time period in which to file."
In response, the Agency submitted two declarations stating that Complainant was aware of the requisite 45-day limitation period. The former Technical Training Manager's declaration dated March 16, 2016, stated that he provided all Benefits Authorizers, including Complainant, by email an annual policy statement for the prevention of harassment in the workplace which stated, in pertinent part: '[U]nder 29 C.F.R. § 1614.105, an aggrieved employee must contact an EEO counselor within 45 days of the date of the allegedly discriminatory action. Failure to contact an EEO counselor within the allotted time period can result in a finding that the claim is stale and not actionable."
The CREO Manager's declaration dated March 14, 2016. Therein, the Manager stated that during the relevant period the EEO posters were "[posted throughout the Mid-America Program Service Center (MAMPSC), including in the canteen area on the 14th floor of the Richard Bolling Federal Building, where Complainant's workstation is located. These notices include specific information about the 45-day time limit for initiating contact with an EEO counselor. These notices have been posted throughout the MAMPSC at least since the time I became CREO Manager in June 2015." The CREO Manager submitted a copy of the EEO notice outlining the requisite 45-day limitation period.
Based on these declarations, we find that the record has established that Complainant had at least constructive notice of the limitation period for seeking EEO counseling.
Furthermore, to the extent Complainant is asserting that he was pursuing other avenues of redress before seeking EEO counseling, the Commission has consistently held that use of internal agency procedures, such as 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 (November 29, 2000).
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).
Final Decision:
Accordingly, the Agency properly dismissed the instant complaint for untimely EEO Counselor contact. The Agency's final decision dismissing the formal complaint for the reason stated herein is AFFIRMED. | Solomon B.,1
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120161131
Agency No. KC-15-1004-SSA
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated January 20, 2016, dismissing a formal 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.
BACKGROUND
In June 2014, Complainant, who was working for the Agency as a Benefits Authorizer, applied for and was selected for a Claims Authorizer position at the Workload Support Unit, Mid-America Program Service Center (MAMPSC) in Kansas City, Kansas. He began his new position on July 15, 2014.
On August 27, 2015, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On November 17, 2015, Complainant filed a formal EEO complaint claiming he was subjected to harassment/a hostile work environment on the basis of disability beginning in November 2014 and continuing until he was forced to request to return to his prior Benefits Authorizer position. He resumed his Benefits Authorizer position on June 1, 2015.
In its January 20, 2016 final decision, 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 Complainant's initial EEO counselor contact was on August 27, 2015, which it found to be well beyond the 45-day limitation period from the most recent event of alleged harassment.
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.
The alleged discriminatory event occurred beginning in November 2014 through Complainant's return to his former position effective June 1, 2015. However, Complainant did not initiate contact with an EEO Counselor until August 27, 2015, well beyond the 45-day limitation period.
On appeal, Complainant argues that he had no actual or constructive knowledge of the limitation period for contacting an EEO counselor. Complainant also asserts that he was "working with management and union officials during this time...my filing only happened when management and union officials had already caused lengthy delays in responding to my concerns and queries. Only when I contacted an EEO Counselor was I informed of the limited time period in which to file."
In response, the Agency submitted two declarations stating that Complainant was aware of the requisite 45-day limitation period. The former Technical Training Manager's declaration dated March 16, 2016, stated that he provided all Benefits Authorizers, including Complainant, by email an annual policy statement for the prevention of harassment in the workplace which stated, in pertinent part: '[U]nder 29 C.F.R. § 1614.105, an aggrieved employee must contact an EEO counselor within 45 days of the date of the allegedly discriminatory action. Failure to contact an EEO counselor within the allotted time period can result in a finding that the claim is stale and not actionable."
The CREO Manager's declaration dated March 14, 2016. Therein, the Manager stated that during the relevant period the EEO posters were "[posted throughout the Mid-America Program Service Center (MAMPSC), including in the canteen area on the 14th floor of the Richard Bolling Federal Building, where Complainant's workstation is located. These notices include specific information about the 45-day time limit for initiating contact with an EEO counselor. These notices have been posted throughout the MAMPSC at least since the time I became CREO Manager in June 2015." The CREO Manager submitted a copy of the EEO notice outlining the requisite 45-day limitation period.
Based on these declarations, we find that the record has established that Complainant had at least constructive notice of the limitation period for seeking EEO counseling.
Furthermore, to the extent Complainant is asserting that he was pursuing other avenues of redress before seeking EEO counseling, the Commission has consistently held that use of internal agency procedures, such as 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 (November 29, 2000).
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). Accordingly, the Agency properly dismissed the instant complaint for untimely EEO Counselor contact.
The Agency's final decision dismissing the formal complaint for the reason stated herein 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 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
May 3, 2016
__________________
Date
------------------------------------------------------------
------------------------------------------------------------
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325 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120160792.txt | 0120160792.txt | TXT | text/plain | 9,593 | Giselle T.,1 Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency. | November 13, 2015 | Appeal Number: 0120160792
Background:
At the time of events giving rise to this complaint, Complainant worked as a Customer Service Representative (GS-8) for Accounts Management in the Agency's Wage and Investment Division (W&I), in St. Louis, Missouri.
On October 22, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of reprisal for prior protected EEO activity (Agency No. IRS-12-0204-F, EEOC Appeal No. 0120132563 (Aug. 11, 2015)) when:
1. On November 15, 2014, management gave her a "Not Ratable" rating on her 2014 annual performance appraisal;
2. Between January 26, 2015 to February 9, 2015, management suspended Complainant; and
3. On or about April 13, 2015, management denied her a Quality Step Increase (QSI).
The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency also dismissed Claim 3 on alternate grounds pursuant to 29 C.F.R. § 1614.107(a)(4).
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 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. The alleged discriminatory events were all personnel actions with identifiable effective dates. Complainant needed to bring her claims to the attention of an EEO Counselor no later than December 29, 2014 for Claim 1, March 12, 2015 for Claim 2, and May 28, 2015 for Claim 3. Complainant did not contact her EEO Counselor until August 25, 2015.
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 he or she was not aware of the time limit; 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 lime limit, or for other reasons considered sufficient by the agency or Commission. Complainant does not articulate a reason for the untimely contact in her formal complaint, however the Agency states in its final decision that Complainant attributed the delay to being unaware of the forty-five (45) day time limitation and stress.
The Commission has consistently held that a complainant who has engaged in prior EEO activity is deemed aware of the time frames required for filing complaints in the EEO procedure. See Coffey v. Dep't. of the Navy, EEOC Request No. 05901006 (Nov. 16, 1990); see also Kader v. United States Postal Serv., EEOC Request No. 05980473 (June 24, 1999) Moreover, while her EEO complaint was pending with this Commission, Complainant received letters on October 21, 2014 and January 21, 2015 from the Agency that included the following language with regard to Claim 1:
Should you allege that the action taken against you was based in whole or in part on discrimination pursuant to 29 C.F.R. 1614.103, you... have the right to file a complaint with the Equal Employment Opportunity (EEO) Commission consistent with 29 C.F.R. 1614... To appeal under 29 C.F.R. 1614, the allegation must be brought to the attention of an EEO counselor within 45 days of the effective date of this action [Complainant's suspension became effective January 26, 2015]... Information about appeal rights and procedures may be obtained from your EEO counselor.
As for Complainant's claim that stress prevented her from timely contacting an EEO Counselor; under 29 C.F.R. § 1614.604(c), to justify an untimely filing due to health, a complainant must be so incapacitated by the condition as to render her physically unable to make a timely filing. See Zelmer v. United States Postal Serv., EEOC Request No. 05890164 (March 8, 1989). Complainant has not provided any evidence or statements to support a finding that the stress caused her to be so incapacitated throughout the applicable period as to prevent her from timely contacting an EEO Counselor.
On appeal, Complainant alleges she did not realize that the above claims could constitute retaliation until August 13, 2015, when she received our decision on EEOC Appeal No. 0120132563 (reversing the Agency's finding of no discrimination in IRS-12-0204-F); which included paperwork (not found in the record) describing retaliation. Given that Complainant had a pending EEO complaint before this Commission when each of the above alleged discriminatory acts occurred, and Complainant's imputed EEO knowledge discussed above, we find this explanation insufficient to warrant an extension.
Finally, the Agency's alternate dismissal for Claim 3 was proper, but we find further analysis unnecessary as all three claims may be dismissed for untimely EEO Counselor contact.
Final Decision:
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. | Giselle T.,1
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120160792
Agency No. IRS151593F
DECISION
Complainant timely appealed to this Commission from the Agency's decision dated November 13, 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
At the time of events giving rise to this complaint, Complainant worked as a Customer Service Representative (GS-8) for Accounts Management in the Agency's Wage and Investment Division (W&I), in St. Louis, Missouri.
On October 22, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of reprisal for prior protected EEO activity (Agency No. IRS-12-0204-F, EEOC Appeal No. 0120132563 (Aug. 11, 2015)) when:
1. On November 15, 2014, management gave her a "Not Ratable" rating on her 2014 annual performance appraisal;
2. Between January 26, 2015 to February 9, 2015, management suspended Complainant; and
3. On or about April 13, 2015, management denied her a Quality Step Increase (QSI).
The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency also dismissed Claim 3 on alternate grounds pursuant to 29 C.F.R. § 1614.107(a)(4).
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 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. The alleged discriminatory events were all personnel actions with identifiable effective dates. Complainant needed to bring her claims to the attention of an EEO Counselor no later than December 29, 2014 for Claim 1, March 12, 2015 for Claim 2, and May 28, 2015 for Claim 3. Complainant did not contact her EEO Counselor until August 25, 2015.
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 he or she was not aware of the time limit; 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 lime limit, or for other reasons considered sufficient by the agency or Commission. Complainant does not articulate a reason for the untimely contact in her formal complaint, however the Agency states in its final decision that Complainant attributed the delay to being unaware of the forty-five (45) day time limitation and stress.
The Commission has consistently held that a complainant who has engaged in prior EEO activity is deemed aware of the time frames required for filing complaints in the EEO procedure. See Coffey v. Dep't. of the Navy, EEOC Request No. 05901006 (Nov. 16, 1990); see also Kader v. United States Postal Serv., EEOC Request No. 05980473 (June 24, 1999) Moreover, while her EEO complaint was pending with this Commission, Complainant received letters on October 21, 2014 and January 21, 2015 from the Agency that included the following language with regard to Claim 1:
Should you allege that the action taken against you was based in whole or in part on discrimination pursuant to 29 C.F.R. 1614.103, you... have the right to file a complaint with the Equal Employment Opportunity (EEO) Commission consistent with 29 C.F.R. 1614... To appeal under 29 C.F.R. 1614, the allegation must be brought to the attention of an EEO counselor within 45 days of the effective date of this action [Complainant's suspension became effective January 26, 2015]... Information about appeal rights and procedures may be obtained from your EEO counselor.
As for Complainant's claim that stress prevented her from timely contacting an EEO Counselor; under 29 C.F.R. § 1614.604(c), to justify an untimely filing due to health, a complainant must be so incapacitated by the condition as to render her physically unable to make a timely filing. See Zelmer v. United States Postal Serv., EEOC Request No. 05890164 (March 8, 1989). Complainant has not provided any evidence or statements to support a finding that the stress caused her to be so incapacitated throughout the applicable period as to prevent her from timely contacting an EEO Counselor.
On appeal, Complainant alleges she did not realize that the above claims could constitute retaliation until August 13, 2015, when she received our decision on EEOC Appeal No. 0120132563 (reversing the Agency's finding of no discrimination in IRS-12-0204-F); which included paperwork (not found in the record) describing retaliation. Given that Complainant had a pending EEO complaint before this Commission when each of the above alleged discriminatory acts occurred, and Complainant's imputed EEO knowledge discussed above, we find this explanation insufficient to warrant an extension.
Finally, the Agency's alternate dismissal for Claim 3 was proper, but we find further analysis unnecessary as all three claims may be dismissed for untimely EEO Counselor contact.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint 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 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 signature
Carlton M. Hadden, Director
Office of Federal Operations
March 10, 2016
__________________
Date
------------------------------------------------------------
------------------------------------------------------------
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"Kader v. United States Postal Serv., EEOC Request No. 05980473 (June 24, 1999)",
"Zelmer v. United States Postal Serv., EEOC Request No. 05890164 (March 8, 1989)",
"29 C.F.R. § 1614.107(a)",
"29 C.F.R. § 1614.105(a)",
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326 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120130665.r.txt | 0120130665.r.txt | TXT | text/plain | 14,961 | January 16, 2014 | Appeal Number: 0120130665
Background:
During the period at issue, Complainant worked as a Nurse Assistant at the Agency's Veterans Affairs Medical Center in Northport, New York.
According to the record, Complainant initiated EEO counselor contact on July 28, 2013, claiming that he was subjected to harassment and a hostile work environment on the bases of race and in reprisal for prior EEO activity, as follows (herein referred to as "original complaint") on behalf of himself and "his Caucasian co-workers" alleging that, for the last few years, the Manager had verbally abused them by repeatedly giving them disciplinary write-ups, letters of reprimands, 3-day suspensions, forced resignations, and not paying white employees after forcing them to cover for African-American employees due to their "late comings," and leaving early from work.1
When counseling was unsuccessful, Complainant was issued a Notice of Right to File a Formal Complaint, which he received on November 4, 2013. On November 5, 2013, Complainant filed the instant formal complaint.
Thereafter, in correspondence dated November 21, 2013 and December 19, 2013, Complainant indicated he wished to amend his original formal complaint, to include claims of race and reprisal discrimination. The amended claim was as follows:
on November 18, 2013, he received a written counseling for sick leave usage.
The record reflects that in the instant final decision, the Agency provided Complainant with notice that it accepted the claim raised in his November 21, 2013 and December 19, 2013 correspondence as an amendment to his complaint.
The record further reflects that the EEO Counselor attempted to collect specific information from Complainant concerning the formal complaint. According to the EEO Counselor, Complainant's submissions were illegible and unclear. Moreover, the EEO Counselor indicated that Complainant had failed to respond appropriately to the EEO Counselor's requests to provide legible statements and/or contact him by telephone, in order to provide information verbally. As a result, the EEO Counselor closed Complainant's case on October 25, 2013, after identifying one general harassment claim that, on July 13, 2013, the Nurse Manager subjected Complainant and his co-workers to harassment and a hostile work environment.
The EEO Counselor contacted Complainant by telephone and e-mail on December 22, 2013, advising him that his complaint required clarification because his hand written statements were illegible and his typed submission did not provide the requisite information in order for the Agency to complete a procedural review. Complainant was also asked to provide specific dates and incidents of harassment. Complainant was cautioned that failure to provide the requested information could result in the dismissal of his complaint for failure to cooperate. Complainant rejected the EEO Counselor's offer of assistance.
On December 23, 2013, Complainant faxed a typed "diary-styled" submission in which he complained about the same nonspecific harassment claim. The EEO Counselor again contacted Complainant and explained that his December 23, 2013 submission was insufficient because it included no dates or specific events of harassment. Complainant was asked to either provide the requested information verbally or, again, to contact the EEO Counselor at a time convenient for Complainant. Complainant again rejected the EEO Counselor's offer for assistance. However, Complainant was provided the opportunity to follow the examples provided in the EEO Counselor's December 23, 2013 e-mail if he wanted to provide specific examples of discrimination or face the possibility that his complaint would be subject to dismissal.
The next day, December 24, 2013, Complainant faxed another diary styled submission in which he continued to complain about the same general harassment claim, and stated that he believed his previous submission on December 23, 2013 provided all the "bullet information" needed to proceed with his complaint.
In its January 16, 2014 final decision, the Agency dismissed the formal complaint on various procedural grounds. With respect to Complainant's claims regarding a 2007 EEO investigation and the processing of prior EEO complaints, the Agency dismissed the claims on the grounds that they alleged dissatisfaction with the processing of a prior complaint, pursuant to 29 C.F.R. § 1614.107(a)(8). Specifically, the Agency determined that Complainant alleges dissatisfaction with the actions of Agency representatives in his 2007 EEO investigation and related to approximately 50 of his prior EEO complaints.
The Agency further determined to the extent that Complainant was complaining about actions by his former union representative and/or his union grievances, these claims are dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) failure to state a claim. Specifically, the Agency determined these claims are a collateral attack on the negotiated grievance process.
Finally, the Agency dismissed complainant's complaint on the alternative grounds of failure to cooperate, pursuant to 29 C.F.R. § 1614.107(a)(7). Specifically, the Agency determined that the Equal Opportunity Counselor contacted Complainant several occasions, informing him that failure to clarify his claims could result in the dismissal of the claims, but that a clear and completed response was never sent to the Agency.
The instant appeal followed.
Legal Analysis:
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).
Complainant has not alleged a personal loss or harm regarding a term, condition or privilege of his employment. There is no allegation that Complainant was disciplined or subjected to any adverse personnel action as a result of the alleged events. To the extent Complainant is claiming a discriminatory hostile work environment, we find that the events described, even if proven to be true and considered together, would not indicate that Complainant has been subjected to harassment that was sufficiently severe or pervasive to alter the conditions of his employment. See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). Finally, the alleged Agency actions were not of a type reasonably likely to deter Complainant or others from engaging in prior protected activity. Lindsey v. USPS, EEOC Request No. 05980410 (November 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998).
Further, we find that Complainant's complaints about the actions by his former union representative and/or union grievances he filed constitute a collateral attack on the negotiated grievance 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. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. USPS, EEOC Request No. 05940585 (September 22, 1994); Lingad v. USPS, EEOC Request No. 05930106 (June 24, 1993). The proper forum for Complainant to have raised his challenges to actions which occurred during the negotiated grievance process is within that process itself. It is inappropriate to now attempt to use the EEO process to collaterally attack actions which occurred through the negotiated grievance process.
Dissatisfaction with the processing of 2007 EEO investigation and prior complaints
EEOC Regulation 29 C.F.R. § 1614.107(a)(8) provides 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 as a new complaint. See EEOC - Management Directive 110 (MP-110) 5 - 23, 5-25 to 5-26 (November 9, 1999). As already noted, Complainant did raise his concerns about the actions of the 2007 EEO investigation and the processing of his prior EEO complaints within the adjudication of those prior complaints. However, simply because he did not prevail in that prior adjudication, he is not entitled to resurrect his claims in a new complaint.
Moreover, we acknowledge that Complainant made reference to a "class complaint." However, we agree with the Agency that, because of Complainant's failure of articulation on this matter, it was more properly treated as an individual complaint for the reasons discussed above.
We further acknowledge that the Agency dismissed the formal complaint for failure to cooperate. However, because we have affirmed the Agency dismissal on other grounds, we find it unnecessary to address this matter.
Amended claim
Here, we find that the Agency properly dismissed the amended claim concerning Complainant's written counseling for sick leave usage. The original complaint was dismissed on the various grounds identified above. Therefore, this amended claim is deemed "faulty" or not a valid complaint, and consequently, Complainant cannot amend it. See Barnes v. Department of Veterans Affairs, EEOC Appeal No. 01A20491 (January 10, 2003).
In | Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120130665
Agency No. 200H-0632-2013104106
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated January 16, 2014, 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 Nurse Assistant at the Agency's Veterans Affairs Medical Center in Northport, New York.
According to the record, Complainant initiated EEO counselor contact on July 28, 2013, claiming that he was subjected to harassment and a hostile work environment on the bases of race and in reprisal for prior EEO activity, as follows (herein referred to as "original complaint") on behalf of himself and "his Caucasian co-workers" alleging that, for the last few years, the Manager had verbally abused them by repeatedly giving them disciplinary write-ups, letters of reprimands, 3-day suspensions, forced resignations, and not paying white employees after forcing them to cover for African-American employees due to their "late comings," and leaving early from work.1
When counseling was unsuccessful, Complainant was issued a Notice of Right to File a Formal Complaint, which he received on November 4, 2013. On November 5, 2013, Complainant filed the instant formal complaint.
Thereafter, in correspondence dated November 21, 2013 and December 19, 2013, Complainant indicated he wished to amend his original formal complaint, to include claims of race and reprisal discrimination. The amended claim was as follows:
on November 18, 2013, he received a written counseling for sick leave usage.
The record reflects that in the instant final decision, the Agency provided Complainant with notice that it accepted the claim raised in his November 21, 2013 and December 19, 2013 correspondence as an amendment to his complaint.
The record further reflects that the EEO Counselor attempted to collect specific information from Complainant concerning the formal complaint. According to the EEO Counselor, Complainant's submissions were illegible and unclear. Moreover, the EEO Counselor indicated that Complainant had failed to respond appropriately to the EEO Counselor's requests to provide legible statements and/or contact him by telephone, in order to provide information verbally. As a result, the EEO Counselor closed Complainant's case on October 25, 2013, after identifying one general harassment claim that, on July 13, 2013, the Nurse Manager subjected Complainant and his co-workers to harassment and a hostile work environment.
The EEO Counselor contacted Complainant by telephone and e-mail on December 22, 2013, advising him that his complaint required clarification because his hand written statements were illegible and his typed submission did not provide the requisite information in order for the Agency to complete a procedural review. Complainant was also asked to provide specific dates and incidents of harassment. Complainant was cautioned that failure to provide the requested information could result in the dismissal of his complaint for failure to cooperate. Complainant rejected the EEO Counselor's offer of assistance.
On December 23, 2013, Complainant faxed a typed "diary-styled" submission in which he complained about the same nonspecific harassment claim. The EEO Counselor again contacted Complainant and explained that his December 23, 2013 submission was insufficient because it included no dates or specific events of harassment. Complainant was asked to either provide the requested information verbally or, again, to contact the EEO Counselor at a time convenient for Complainant. Complainant again rejected the EEO Counselor's offer for assistance. However, Complainant was provided the opportunity to follow the examples provided in the EEO Counselor's December 23, 2013 e-mail if he wanted to provide specific examples of discrimination or face the possibility that his complaint would be subject to dismissal.
The next day, December 24, 2013, Complainant faxed another diary styled submission in which he continued to complain about the same general harassment claim, and stated that he believed his previous submission on December 23, 2013 provided all the "bullet information" needed to proceed with his complaint.
In its January 16, 2014 final decision, the Agency dismissed the formal complaint on various procedural grounds. With respect to Complainant's claims regarding a 2007 EEO investigation and the processing of prior EEO complaints, the Agency dismissed the claims on the grounds that they alleged dissatisfaction with the processing of a prior complaint, pursuant to 29 C.F.R. § 1614.107(a)(8). Specifically, the Agency determined that Complainant alleges dissatisfaction with the actions of Agency representatives in his 2007 EEO investigation and related to approximately 50 of his prior EEO complaints.
The Agency further determined to the extent that Complainant was complaining about actions by his former union representative and/or his union grievances, these claims are dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) failure to state a claim. Specifically, the Agency determined these claims are a collateral attack on the negotiated grievance process.
Finally, the Agency dismissed complainant's complaint on the alternative grounds of failure to cooperate, pursuant to 29 C.F.R. § 1614.107(a)(7). Specifically, the Agency determined that the Equal Opportunity Counselor contacted Complainant several occasions, informing him that failure to clarify his claims could result in the dismissal of the claims, but that a clear and completed response was never sent to the Agency.
The instant appeal followed.
ANALYSIS AND FINDINGS
Failure to state a claim (claim 1 and actions by former union representative/union grievances)
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).
Complainant has not alleged a personal loss or harm regarding a term, condition or privilege of his employment. There is no allegation that Complainant was disciplined or subjected to any adverse personnel action as a result of the alleged events. To the extent Complainant is claiming a discriminatory hostile work environment, we find that the events described, even if proven to be true and considered together, would not indicate that Complainant has been subjected to harassment that was sufficiently severe or pervasive to alter the conditions of his employment. See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). Finally, the alleged Agency actions were not of a type reasonably likely to deter Complainant or others from engaging in prior protected activity. Lindsey v. USPS, EEOC Request No. 05980410 (November 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998).
Further, we find that Complainant's complaints about the actions by his former union representative and/or union grievances he filed constitute a collateral attack on the negotiated grievance 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. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. USPS, EEOC Request No. 05940585 (September 22, 1994); Lingad v. USPS, EEOC Request No. 05930106 (June 24, 1993). The proper forum for Complainant to have raised his challenges to actions which occurred during the negotiated grievance process is within that process itself. It is inappropriate to now attempt to use the EEO process to collaterally attack actions which occurred through the negotiated grievance process.
Dissatisfaction with the processing of 2007 EEO investigation and prior complaints
EEOC Regulation 29 C.F.R. § 1614.107(a)(8) provides 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 as a new complaint. See EEOC - Management Directive 110 (MP-110) 5 - 23, 5-25 to 5-26 (November 9, 1999). As already noted, Complainant did raise his concerns about the actions of the 2007 EEO investigation and the processing of his prior EEO complaints within the adjudication of those prior complaints. However, simply because he did not prevail in that prior adjudication, he is not entitled to resurrect his claims in a new complaint.
Moreover, we acknowledge that Complainant made reference to a "class complaint." However, we agree with the Agency that, because of Complainant's failure of articulation on this matter, it was more properly treated as an individual complaint for the reasons discussed above.
We further acknowledge that the Agency dismissed the formal complaint for failure to cooperate. However, because we have affirmed the Agency dismissal on other grounds, we find it unnecessary to address this matter.
Amended claim
Here, we find that the Agency properly dismissed the amended claim concerning Complainant's written counseling for sick leave usage. The original complaint was dismissed on the various grounds identified above. Therefore, this amended claim is deemed "faulty" or not a valid complaint, and consequently, Complainant cannot amend it. See Barnes v. Department of Veterans Affairs, EEOC Appeal No. 01A20491 (January 10, 2003).
In conclusion, for the reasons set forth above, we AFFIRM the Agency's final decision dismissing the captioned complaint.
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
March 24, 2015
__________________
Date
1 While unclear, to the extent Complainant was trying to raise a class claim, the Agency determined that during EEO counseling Complainant did not respond to repeated requests to provide any information in a "clear, cohesive, or legible manner which is necessary to forward a class complaint to EEOC for certification." The Agency concluded that it would therefore process the instant complaint as an individual complaint. On appeal, Complainant does not appear to challenge this determination, so we will also consider this an individual complaint.
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327 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/2019002732.pdf | 2019002732.pdf | PDF | application/pdf | 14,981 | Ivan V. ,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of Defense (Defense Logistics Agency (DLA) ), Agency. | April 11, 2019 | Appeal Number: 2019002732
Background:
At the time of events giving rise to this equal employment opportunity (EEO) complaint,
Complainant w as employed by the Agency as a Business Process Analyst, GS -0301- 13 at the DLA
Distribution facility in New Cumberland, Pennsylvania.
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 FAD in the record is dated February 26, 2019, and captioned with Agency No. DLAC -19-
0016. The Agency used UPS to deliver the FAD to Complainant, with a scheduled delivery date
of March 12, 2019. On appeal, Complainant included the FAD he received, which was the same as the February 26, 2019 FAD, except it is dated March 8, 2019, and captioned with Agency No.
DLAN -19-0016. In opposition to Complainant’s appeal, the Agency identifies the instant case as
DLAN -19-0016. We presume the FAD in the record was never sent to Complainant, and was later
revised to correct the Agency number.
On October 8, 2018, Complainant initiated EEO counseling via email regarding his complaint.
During EEO counseling, which took place via email, Complainant alleged that he was subjected
to harassment, a hostile work environment, and discrimination based on his race (African-
American) and reprisal for prior EEO activity when he was mistreated by an identified manager at a July 2018 meeting at DLA Headquarters in Ft. Belvoir, Virginia, and again at a n Au gust 23,
2018 meeting at the DLA Distribution Headquarters in New Cumberland, Pennsylvania. The E EO
office sought more detail from Complainant so his claim could be appropriately processed, but he
did not further clarify his claim. Instead, by email on November 4, 2018, Complainant replied,
“I’ve been out sick, and I’ve had difficulty with more than basic functioning” and by email on November 5, 2018, wrote “I’m really depressed right now and don’t feel well enough” to complete an intake form that solicited more information.
Thereafter, the Agency mailed Complainant his notice of right to file an EEO complaint, which he
exercised via email on November 23, 2018. In his brief one paragraph EEO complaint,
Complainant repeated the claim he raised with the EEO counselor, without further elaboration .
By letter dated January 24, 2019, which was scheduled via U PS for delivery to Complainant on
January 28, 2019, the Agency’s EEO office requested he clarify his EEO complaint, with
instructions so it could appropria tely process his complaint. The Agency warned Complainant that
if he did not provide the requested information within 15 days from receipt of the letter, his EEO complaint may be dismissed under 29 CFR § 1614.107(a)(7) .
After getting no response from Complainant, the Agency issued its FAD dismissing Complainant’s EEO complaint under 29 CFR § 1614.107(a)(7) . The instant appeal followed.
On appeal, Complainant contends that he did not clarify his EEO complaint in response to the
Agency’s requests that he do so because he was medically incapacitated. He explain s that he has
been suffering with post -traumatic stress disorder (PTSD), depression, a very bad case of facial
shingles which swelled his face, bad headaches, and dizziness, and this has mostly kept him out of work. In support thereof, he submits medical documentation. This includes a Family Medical Leave Act (FMLA) form completed by his health care provider on October 6, 2018, representing Complainant has symptoms of depression and anxiety, episodes of sadness and hopelessness , and
difficulties with excessive sleeping, concentrating, and maintaining clear thought patterns. The health care provider estimated that Complainant could work 4 – 8 hours a day, 1 – 2 days a week, from September 1, 2018 – Febru ary 1, 2019, and he would have flare ups once per week with each
episode being 24 – 48 hours. Complainant submits a note by a health care advisor dated March 13,
2019, that advised that because Complainant was being treated for chronic sinusitis and shingl es
with complications , he is excused from work from February 11, 2019 – March 18, 2019, and that
he has been incapacitated due to these issues.
On appeal, Complainant clarifies his EEO complaint. He writes that at the meeting in July 2018, when he was passing out his first line supervisor’s handouts, the identified manager angrily and
loudly in a rapid fire manner while derisively laughing questioned him with comments such as “What is this?”, “Who gave you authority to do this?”, “Do you have enough copi es for everyone?”
and “Did you email me a copy?” Complainant writes that at the August 23, 2018 meeting , which
was large, he responded to a question the identified manager threw out to the group, and she reacted
by saying “she needed a real answer …”, and after he emailed the information to one of the
manager’s subordinates, who apparently at the meeting forwarded it to the manager, the la tter
slammed her laptop closed and said “this is exactly what I said I don’t want” or something close
to that.
In opposition to the appeal, the Agency argues the Complainant’s medical documentation is insufficient, and he did not ask the EEO office for an extension.
Legal Analysis:
the Commission’s website.
2 The FAD in the record is dated February 26, 2019, and captioned with Agency No. DLAC -19-
0016. The Agency used UPS to deliver the FAD to Complainant, with a scheduled delivery date
of March 12, 2019. On appeal, Complainant included the FAD he received, which was the same as the February 26, 2019 FAD, except it is dated March 8, 2019, and captioned with Agency No.
DLAN -19-0016. In opposition to Complainant’s appeal, the Agency identifies the instant case as
DLAN -19-0016. We presume the FAD in the record was never sent to Complainant, and was later
revised to correct the Agency number.
On October 8, 2018, Complainant initiated EEO counseling via email regarding his complaint.
During EEO counseling, which took place via email, Complainant alleged that he was subjected
to harassment, a hostile work environment, and discrimination based on his race (African-
American) and reprisal for prior EEO activity when he was mistreated by an identified manager at a July 2018 meeting at DLA Headquarters in Ft. Belvoir, Virginia, and again at a n Au gust 23,
2018 meeting at the DLA Distribution Headquarters in New Cumberland, Pennsylvania. The E EO
office sought more detail from Complainant so his claim could be appropriately processed, but he
did not further clarify his claim. Instead, by email on November 4, 2018, Complainant replied,
“I’ve been out sick, and I’ve had difficulty with more than basic functioning” and by email on November 5, 2018, wrote “I’m really depressed right now and don’t feel well enough” to complete an intake form that solicited more information.
Thereafter, the Agency mailed Complainant his notice of right to file an EEO complaint, which he
exercised via email on November 23, 2018. In his brief one paragraph EEO complaint,
Complainant repeated the claim he raised with the EEO counselor, without further elaboration .
By letter dated January 24, 2019, which was scheduled via U PS for delivery to Complainant on
January 28, 2019, the Agency’s EEO office requested he clarify his EEO complaint, with
instructions so it could appropria tely process his complaint. The Agency warned Complainant that
if he did not provide the requested information within 15 days from receipt of the letter, his EEO complaint may be dismissed under 29 CFR § 1614.107(a)(7) .
After getting no response from Complainant, the Agency issued its FAD dismissing Complainant’s EEO complaint under 29 CFR § 1614.107(a)(7) . The instant appeal followed.
On appeal, Complainant contends that he did not clarify his EEO complaint in response to the
Agency’s requests that he do so because he was medically incapacitated. He explain s that he has
been suffering with post -traumatic stress disorder (PTSD), depression, a very bad case of facial
shingles which swelled his face, bad headaches, and dizziness, and this has mostly kept him out of work. In support thereof, he submits medical documentation. This includes a Family Medical Leave Act (FMLA) form completed by his health care provider on October 6, 2018, representing Complainant has symptoms of depression and anxiety, episodes of sadness and hopelessness , and
difficulties with excessive sleeping, concentrating, and maintaining clear thought patterns. The health care provider estimated that Complainant could work 4 – 8 hours a day, 1 – 2 days a week, from September 1, 2018 – Febru ary 1, 2019, and he would have flare ups once per week with each
episode being 24 – 48 hours. Complainant submits a note by a health care advisor dated March 13,
2019, that advised that because Complainant was being treated for chronic sinusitis and shingl es
with complications , he is excused from work from February 11, 2019 – March 18, 2019, and that
he has been incapacitated due to these issues.
On appeal, Complainant clarifies his EEO complaint. He writes that at the meeting in July 2018, when he was passing out his first line supervisor’s handouts, the identified manager angrily and
loudly in a rapid fire manner while derisively laughing questioned him with comments such as “What is this?”, “Who gave you authority to do this?”, “Do you have enough copi es for everyone?”
and “Did you email me a copy?” Complainant writes that at the August 23, 2018 meeting , which
was large, he responded to a question the identified manager threw out to the group, and she reacted
by saying “she needed a real answer …”, and after he emailed the information to one of the
manager’s subordinates, who apparently at the meeting forwarded it to the manager, the la tter
slammed her laptop closed and said “this is exactly what I said I don’t want” or something close
to that.
In opposition to the appeal, the Agency argues the Complainant’s medical documentation is insufficient, and he did not ask the EEO office for an extension.
ANALYSIS AND FINDINGS
EEOC Regulation 29 CFR § 1614.107(a)(7) states that an agency may dismiss a complaint w here
it has provided the complainant with a written request to provide relevant information or otherwise
proceed with the complaint, and the complainant fails to respond to the request within 15 days of
its receipt or the complainant's response does not address the agency's request, provided that the request included a notice of the proposed dismissal. The regulation also provides that i nstead of
dismissing for failure to cooperate, the complaint may be adjudicated if sufficient information for that purpose is available .
The claim Complainant raised with the EEO counselor and in his complaint was too generalized to allow the Agency to adequately process his comp laint.
Final Decision:
Accordingly, the Agency properly utilized 29 CFR § 1614.107(a)(7) . EEOC Regulation 29 CFR § 1614.604(c ) provides that all time periods in EEOC Regulation Part 1614 are subject to waiver, estoppel, and equitable tolling. We find that Complainant has shown the 15 day time limit should be equitably tolled. Complainant has severe depression, which manifests at times in his having difficulty maintaining clear thought patterns. While his medical documentation on this is insufficient to determine how his depression was manifesting toward the end of the 15 day time limit, the relevant period, this, combined with Complainant being mostly out of work and having a bad case of facial shingles with complications during the relevant time period is sufficient to show, more likely than not, that Complainant was too incapacitated to participate in the EEO process then. Because Complainant’s EEO complaint was too generalized to allow the Agency to adequately process his complaint, on remand it will have an opportunity to define the EEO complaint and determine whether it should be accepted for investigation. The FAD is REVERSED. | Ivan V. ,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of Defense
(Defense Logistics Agency (DLA) ),
Agency.
Appeal No. 2019002732
Agency No. DLAN-19-0016
DECISION
On April 11, 2019, Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a final Agency decision (FAD) dated March 8, 2019,2
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 amen ded, 29 U.S.C. § 791 et seq.
BACKGROUND
At the time of events giving rise to this equal employment opportunity (EEO) complaint,
Complainant w as employed by the Agency as a Business Process Analyst, GS -0301- 13 at the DLA
Distribution facility in New Cumberland, Pennsylvania.
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 FAD in the record is dated February 26, 2019, and captioned with Agency No. DLAC -19-
0016. The Agency used UPS to deliver the FAD to Complainant, with a scheduled delivery date
of March 12, 2019. On appeal, Complainant included the FAD he received, which was the same as the February 26, 2019 FAD, except it is dated March 8, 2019, and captioned with Agency No.
DLAN -19-0016. In opposition to Complainant’s appeal, the Agency identifies the instant case as
DLAN -19-0016. We presume the FAD in the record was never sent to Complainant, and was later
revised to correct the Agency number.
On October 8, 2018, Complainant initiated EEO counseling via email regarding his complaint.
During EEO counseling, which took place via email, Complainant alleged that he was subjected
to harassment, a hostile work environment, and discrimination based on his race (African-
American) and reprisal for prior EEO activity when he was mistreated by an identified manager at a July 2018 meeting at DLA Headquarters in Ft. Belvoir, Virginia, and again at a n Au gust 23,
2018 meeting at the DLA Distribution Headquarters in New Cumberland, Pennsylvania. The E EO
office sought more detail from Complainant so his claim could be appropriately processed, but he
did not further clarify his claim. Instead, by email on November 4, 2018, Complainant replied,
“I’ve been out sick, and I’ve had difficulty with more than basic functioning” and by email on November 5, 2018, wrote “I’m really depressed right now and don’t feel well enough” to complete an intake form that solicited more information.
Thereafter, the Agency mailed Complainant his notice of right to file an EEO complaint, which he
exercised via email on November 23, 2018. In his brief one paragraph EEO complaint,
Complainant repeated the claim he raised with the EEO counselor, without further elaboration .
By letter dated January 24, 2019, which was scheduled via U PS for delivery to Complainant on
January 28, 2019, the Agency’s EEO office requested he clarify his EEO complaint, with
instructions so it could appropria tely process his complaint. The Agency warned Complainant that
if he did not provide the requested information within 15 days from receipt of the letter, his EEO complaint may be dismissed under 29 CFR § 1614.107(a)(7) .
After getting no response from Complainant, the Agency issued its FAD dismissing Complainant’s EEO complaint under 29 CFR § 1614.107(a)(7) . The instant appeal followed.
On appeal, Complainant contends that he did not clarify his EEO complaint in response to the
Agency’s requests that he do so because he was medically incapacitated. He explain s that he has
been suffering with post -traumatic stress disorder (PTSD), depression, a very bad case of facial
shingles which swelled his face, bad headaches, and dizziness, and this has mostly kept him out of work. In support thereof, he submits medical documentation. This includes a Family Medical Leave Act (FMLA) form completed by his health care provider on October 6, 2018, representing Complainant has symptoms of depression and anxiety, episodes of sadness and hopelessness , and
difficulties with excessive sleeping, concentrating, and maintaining clear thought patterns. The health care provider estimated that Complainant could work 4 – 8 hours a day, 1 – 2 days a week, from September 1, 2018 – Febru ary 1, 2019, and he would have flare ups once per week with each
episode being 24 – 48 hours. Complainant submits a note by a health care advisor dated March 13,
2019, that advised that because Complainant was being treated for chronic sinusitis and shingl es
with complications , he is excused from work from February 11, 2019 – March 18, 2019, and that
he has been incapacitated due to these issues.
On appeal, Complainant clarifies his EEO complaint. He writes that at the meeting in July 2018, when he was passing out his first line supervisor’s handouts, the identified manager angrily and
loudly in a rapid fire manner while derisively laughing questioned him with comments such as “What is this?”, “Who gave you authority to do this?”, “Do you have enough copi es for everyone?”
and “Did you email me a copy?” Complainant writes that at the August 23, 2018 meeting , which
was large, he responded to a question the identified manager threw out to the group, and she reacted
by saying “she needed a real answer …”, and after he emailed the information to one of the
manager’s subordinates, who apparently at the meeting forwarded it to the manager, the la tter
slammed her laptop closed and said “this is exactly what I said I don’t want” or something close
to that.
In opposition to the appeal, the Agency argues the Complainant’s medical documentation is insufficient, and he did not ask the EEO office for an extension.
ANALYSIS AND FINDINGS
EEOC Regulation 29 CFR § 1614.107(a)(7) states that an agency may dismiss a complaint w here
it has provided the complainant with a written request to provide relevant information or otherwise
proceed with the complaint, and the complainant fails to respond to the request within 15 days of
its receipt or the complainant's response does not address the agency's request, provided that the request included a notice of the proposed dismissal. The regulation also provides that i nstead of
dismissing for failure to cooperate, the complaint may be adjudicated if sufficient information for that purpose is available .
The claim Complainant raised with the EEO counselor and in his complaint was too generalized to allow the Agency to adequately process his comp laint. Accordingly, the Agency properly
utilized 29 CFR § 1614.107(a)(7) .
EEOC Regulation 29 CFR § 1614.604(c ) provides that all time periods in EEOC Regulation Part
1614 are subject to waiver, estoppel, and equitable tolling. We find that Complainant has shown
the 15 day time limit should be equitably tolled. Complainant has severe depression, which manifests at times in his having difficulty maintaining clear thought patterns. While his medical documentation on this is insufficient to determine how his depression was manifesting toward the end of the 15 day time limit, the relevant period, this, combined with Complainant being mostly out of work and having a bad case of facial shingles with complications during the relevant time period is sufficient to show, more likely than not, that Complainant was too incapacitated to
participate in the EEO process then.
Because Complainant’s EEO complaint was too generalized to allow the Agency to adequately process his complaint, on remand it will have an opportunity to define the EEO complaint and
determine whether it should be accepted for investigation.
The FAD is REVERSED.
ORDER
The Agency is ordered to process the remanded claims , as appropriate, in accordance with 29
C.F.R. Part 1614. Within 45 ca lendar days of the date of this decision, the Agency ’s EEO function
shall define the claims in Complainant’s EEO complaint and either issue a letter to him accepting
his EEO complaint in whole or part, or a FAD dismissing his entire complaint. As provided in the
statement entitled "Implementation of the Commission's Decision,” the Agency must submit a copy of which action it took.
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 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 admi nistrative 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 decisio n, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in i ts 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 mat erial 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 cert ified 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 with in 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 it s 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 nat ional 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 pa y 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 20, 2019
Date | [
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328 | https://www.eeoc.gov/sites/default/files/decisions/2022_01_12/2021004705.pdf | 2021004705.pdf | PDF | application/pdf | 14,200 | Joshua F.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. | July 12, 2021 | Appeal Number: 2021004705
Background:
At the time of events giving rise to this complaint, Complainant worked as a Contact
Representative, GS -0962-05, at the Agency’s Kansas City Teleservice Center in Kansas City,
Missouri. Complainant received his excepted servi ce appointment effective September 29, 2019. H is
appointment was subject to satisfactory comp letion of a one -year p robationary period. D uring
his proba tionary period, he was issued a No tice of Termination which was effective July 30,
2020. The Notice included a “Notice of Rights ” which indicated that if “ you believe that your
termination is sole ly based on race, color, religion, sex, pregnancy, national origin, disability ,
genetic information , or reprisal for prior Equal Employment Opportunity (EEO ) activity , you
have the right to file a complaint through the Agenc y’s EEO procedure. ” The Notice also
informed Complain ant that “[y]ou must first cons ult an EEO Counselor within 45 calendar da ys
after the effective date of this action. ”
1 This case has been randomly as signed a pseudonym which will replace Complainant’s name
when the decision is published to non- parties and the Commission’s website.
On September 15, 2020, Complainant emailed the Missouri Department of Labor (DOL)
regar ding hi s termination and alleged discriminat ion at the Agency. On September 28, 2020, a
representative from the Missouri Commission on Human Rights (MCHR) emailed the Complainant and informed him that if he had filed a claim with the EEOC, there was no ne ed to
file with their agency as they had a work share agreement. The record is absent additional
communication between Complainant and MCHR following this exchange until February 2021.
On February 1, 2021, Complainant emailed MCHR and asked , "… if I underst and correctly this
filing also files/protects my rights with the EEOC, correct?" On February 9, 2021, MCHR
emailed Complainant and indicated that they had received his intake, but that his case was past
their 180- day time limit. MCHR further exp laine d that i f they found jurisdict ion, the EEOC had
a 300- day time limit and they could share his case with EEOC. In a response on the same date,
Complainant stated that he filed his initial concern mid -September 2020, and he was released
from work on J uly 30, 2020, and was therefore within the 45- day limit. He quest ioned whether
this protected the 180- day filing time period with MCHR.
On February 18, 2021 MCHR responded and explained that the 180- day filing time was in terms
of when MCHR filed the charge of discrimination, rather than the time an intake is filed. MCHR
noted that while the Complainant did send the intake within the 180- day period, because they
were not a ble to get a charge created then, they would instead send the case to the EEOC to
investi gate as the E EOC had a 300- day filing period.
Complainant contacted an E EO counselor at the Agency on February 5, 2021. On May 18, 2021,
Complainant filed a formal complaint alleging that the Agency subjected him to discrimi nation
on the bases of race (African -American) and color (Black) when:
1. Beginning in M arch 2020, Complainant was subjected to non- sexual harassment,
including when an avatar was created of him which greatly exaggerated t he
darkness of his skin, his hobby was listed as napping, and he was spoken down to
as if he had a mental condition ;
2. On July 30, 2020, he was provided a N otice of T ermination During Probationary
Period ; and
3. Management denied him Weingarten rights .
On Jul y 12, 2021, t he Agency dismissed co mplainant's complaint for untimely EEO counselor
contact, finding that he had not initiated the EEO process within 45 days of the date of the matter
alleged t o be discriminatory . 29 C.F.R. § 1614.107(a)(2). The Agency a lso dismissed claim 3
regar ding the denial of W eingarten Rights pursuant to 29 C.F.R. § 1614.107(a)( 1) for failure to
state a claim . The Agency noted that claim 3 constituted a collateral attack and impermissibly
used the EEO process.
This appeal followed. On appeal, Complainant argue s that his contact was timely as is app arent
from his email exch anges with MCHR.
In response , the Agency argues that Complainant was aware of the 45 -day period due to the
Notice of Rights attached to his Notice of Termination. T he Notice of Rights expla ined that if
Complainant believed his termination was due to a protected basis, he had the right to file a
complaint through the Agency ’s EEO procedure. The Notice of Rights also explained that
Complainant had to consult an EEO counselor within 45 ca lenda r days after the effective date of
his termination.
Legal Analysis:
the Commission’s website.
On September 15, 2020, Complainant emailed the Missouri Department of Labor (DOL)
regar ding hi s termination and alleged discriminat ion at the Agency. On September 28, 2020, a
representative from the Missouri Commission on Human Rights (MCHR) emailed the Complainant and informed him that if he had filed a claim with the EEOC, there was no ne ed to
file with their agency as they had a work share agreement. The record is absent additional
communication between Complainant and MCHR following this exchange until February 2021.
On February 1, 2021, Complainant emailed MCHR and asked , "… if I underst and correctly this
filing also files/protects my rights with the EEOC, correct?" On February 9, 2021, MCHR
emailed Complainant and indicated that they had received his intake, but that his case was past
their 180- day time limit. MCHR further exp laine d that i f they found jurisdict ion, the EEOC had
a 300- day time limit and they could share his case with EEOC. In a response on the same date,
Complainant stated that he filed his initial concern mid -September 2020, and he was released
from work on J uly 30, 2020, and was therefore within the 45- day limit. He quest ioned whether
this protected the 180- day filing time period with MCHR.
On February 18, 2021 MCHR responded and explained that the 180- day filing time was in terms
of when MCHR filed the charge of discrimination, rather than the time an intake is filed. MCHR
noted that while the Complainant did send the intake within the 180- day period, because they
were not a ble to get a charge created then, they would instead send the case to the EEOC to
investi gate as the E EOC had a 300- day filing period.
Complainant contacted an E EO counselor at the Agency on February 5, 2021. On May 18, 2021,
Complainant filed a formal complaint alleging that the Agency subjected him to discrimi nation
on the bases of race (African -American) and color (Black) when:
1. Beginning in M arch 2020, Complainant was subjected to non- sexual harassment,
including when an avatar was created of him which greatly exaggerated t he
darkness of his skin, his hobby was listed as napping, and he was spoken down to
as if he had a mental condition ;
2. On July 30, 2020, he was provided a N otice of T ermination During Probationary
Period ; and
3. Management denied him Weingarten rights .
On Jul y 12, 2021, t he Agency dismissed co mplainant's complaint for untimely EEO counselor
contact, finding that he had not initiated the EEO process within 45 days of the date of the matter
alleged t o be discriminatory . 29 C.F.R. § 1614.107(a)(2). The Agency a lso dismissed claim 3
regar ding the denial of W eingarten Rights pursuant to 29 C.F.R. § 1614.107(a)( 1) for failure to
state a claim . The Agency noted that claim 3 constituted a collateral attack and impermissibly
used the EEO process.
This appeal followed. On appeal, Complainant argue s that his contact was timely as is app arent
from his email exch anges with MCHR.
In response , the Agency argues that Complainant was aware of the 45 -day period due to the
Notice of Rights attached to his Notice of Termination. T he Notice of Rights expla ined that if
Complainant believed his termination was due to a protected basis, he had the right to file a
complaint through the Agency ’s EEO procedure. The Notice of Rights also explained that
Complainant had to consult an EEO counselor within 45 ca lenda r days after the effective date of
his termination.
ANALYSIS AND FINDINGS
With regard to the Agency’ s decision regardin g claim 3 involving Complainant ’s Weingarten
Rights, Complainant must rais e such claims within the collective bargaining agreement process
and not here. Under 29 C.F.R. § 1614.107(a)(1), the EEO process cannot be used to lodge a
collateral attack against another proceeding. “A claim that can be characterized as a collateral
attack, by definition, involves a challenge to another forum's proc eeding , suc h as the grievance
process, the unemployment compensation process, or the workers' c ompensation process.” See
Lingad v. U .S. Postal Serv. , EEOC Request No. 05930106 (June 25, 1993); Kleinman v. U .S.
Postal Serv. , EEOC Request No. 05940585 (Sept . 22, 1994) ; Wills v. Dep't of De f., EEOC
Request No. 05970596 (July 30, 1998). Thus, a claim involving an issue relating to union
representation (e.g. denial of Weingarten Ri ghts) constitutes a collateral attack on the grievance
process. See Spiwa k v. U .S. Postal S erv., EEOC Appeal No. 01991180 (Jan. 26, 2001); Shibel v.
Dep't of the Navy, EEOC Ap peal No. 01987064 (Aug. 12, 1999). A s such, we find that the
dismissal o f claim 3 for failure to stat e a cl aim was appropriate.
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complai nts 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 Com mission has
adopted a "reasonable suspicion" standard (as opposed to a "s upportive facts" standard) to
determine when the forty -five (45) day limitati on 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 sus pects discrimination, but before all the facts that
support a charge of discr imination have become apparent.
The Commission has held that in order to establish EEO Counselor cont act, an individual must
contact an agency official logically connected to the EEO process and exhibit an intent to begin
the EEO process. Robinson v. Dep ’t of the Treasury , EEOC Appeal No. 01A44877 (Apr. 20,
2006). T he Commission has also consistently he ld that a complainant satisfies the criterion of
EEO 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 inte nt to begin the
EEO process. See Cox v. Dep’t of Hous. and Urban Dev., EEOC Request No. 05980083 (July
30, 1998); Allen v. U.S. Postal Serv., EEOC Request No. 05950933 (July 9, 1996).
In this c ase, the last possible date complainant could have been subje cted to discrimination was
July 30, 2020, the effec tive date of his Notice of T ermination. For his complaint to b e
considered timely filed, he should have initiated EEO counseling no later than September 14,
2020.2 Complainant contacted the MHRC on Sep tember 15, 2020. Assuming that the MHRC
was an entit y logically connecte d to the EEO process, Complainant ’s con tact was still untimely.
Furthermore, Complainant ’s February 5, 2021, contact of the A gency’ s EEO Counselor is also
well beyond the 45- day limit . As noted by th e Agency on appeal, Complainant ’s Notice of
Termination inc luded a No tice of Rights section which defined t he appropriate prot ocol for
timely contacting an EEO Counselor . Complainant has not presented any persuasive arguments
or evidence warranting an extension of the time limit for initiating EEO Counselor contact. 2 9
C.F.R. § 1614.105(a)(2). Therefore, his claim s were properly dismissed as untimely. | Joshua F.,1
Complainant,
v.
Andrew M. Saul,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 2021004705
Agency No. KC-21-0231- SSA
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's deci sion dated July 12, 2021, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contact
Representative, GS -0962-05, at the Agency’s Kansas City Teleservice Center in Kansas City,
Missouri. Complainant received his excepted servi ce appointment effective September 29, 2019. H is
appointment was subject to satisfactory comp letion of a one -year p robationary period. D uring
his proba tionary period, he was issued a No tice of Termination which was effective July 30,
2020. The Notice included a “Notice of Rights ” which indicated that if “ you believe that your
termination is sole ly based on race, color, religion, sex, pregnancy, national origin, disability ,
genetic information , or reprisal for prior Equal Employment Opportunity (EEO ) activity , you
have the right to file a complaint through the Agenc y’s EEO procedure. ” The Notice also
informed Complain ant that “[y]ou must first cons ult an EEO Counselor within 45 calendar da ys
after the effective date of this action. ”
1 This case has been randomly as signed a pseudonym which will replace Complainant’s name
when the decision is published to non- parties and the Commission’s website.
On September 15, 2020, Complainant emailed the Missouri Department of Labor (DOL)
regar ding hi s termination and alleged discriminat ion at the Agency. On September 28, 2020, a
representative from the Missouri Commission on Human Rights (MCHR) emailed the Complainant and informed him that if he had filed a claim with the EEOC, there was no ne ed to
file with their agency as they had a work share agreement. The record is absent additional
communication between Complainant and MCHR following this exchange until February 2021.
On February 1, 2021, Complainant emailed MCHR and asked , "… if I underst and correctly this
filing also files/protects my rights with the EEOC, correct?" On February 9, 2021, MCHR
emailed Complainant and indicated that they had received his intake, but that his case was past
their 180- day time limit. MCHR further exp laine d that i f they found jurisdict ion, the EEOC had
a 300- day time limit and they could share his case with EEOC. In a response on the same date,
Complainant stated that he filed his initial concern mid -September 2020, and he was released
from work on J uly 30, 2020, and was therefore within the 45- day limit. He quest ioned whether
this protected the 180- day filing time period with MCHR.
On February 18, 2021 MCHR responded and explained that the 180- day filing time was in terms
of when MCHR filed the charge of discrimination, rather than the time an intake is filed. MCHR
noted that while the Complainant did send the intake within the 180- day period, because they
were not a ble to get a charge created then, they would instead send the case to the EEOC to
investi gate as the E EOC had a 300- day filing period.
Complainant contacted an E EO counselor at the Agency on February 5, 2021. On May 18, 2021,
Complainant filed a formal complaint alleging that the Agency subjected him to discrimi nation
on the bases of race (African -American) and color (Black) when:
1. Beginning in M arch 2020, Complainant was subjected to non- sexual harassment,
including when an avatar was created of him which greatly exaggerated t he
darkness of his skin, his hobby was listed as napping, and he was spoken down to
as if he had a mental condition ;
2. On July 30, 2020, he was provided a N otice of T ermination During Probationary
Period ; and
3. Management denied him Weingarten rights .
On Jul y 12, 2021, t he Agency dismissed co mplainant's complaint for untimely EEO counselor
contact, finding that he had not initiated the EEO process within 45 days of the date of the matter
alleged t o be discriminatory . 29 C.F.R. § 1614.107(a)(2). The Agency a lso dismissed claim 3
regar ding the denial of W eingarten Rights pursuant to 29 C.F.R. § 1614.107(a)( 1) for failure to
state a claim . The Agency noted that claim 3 constituted a collateral attack and impermissibly
used the EEO process.
This appeal followed. On appeal, Complainant argue s that his contact was timely as is app arent
from his email exch anges with MCHR.
In response , the Agency argues that Complainant was aware of the 45 -day period due to the
Notice of Rights attached to his Notice of Termination. T he Notice of Rights expla ined that if
Complainant believed his termination was due to a protected basis, he had the right to file a
complaint through the Agency ’s EEO procedure. The Notice of Rights also explained that
Complainant had to consult an EEO counselor within 45 ca lenda r days after the effective date of
his termination.
ANALYSIS AND FINDINGS
With regard to the Agency’ s decision regardin g claim 3 involving Complainant ’s Weingarten
Rights, Complainant must rais e such claims within the collective bargaining agreement process
and not here. Under 29 C.F.R. § 1614.107(a)(1), the EEO process cannot be used to lodge a
collateral attack against another proceeding. “A claim that can be characterized as a collateral
attack, by definition, involves a challenge to another forum's proc eeding , suc h as the grievance
process, the unemployment compensation process, or the workers' c ompensation process.” See
Lingad v. U .S. Postal Serv. , EEOC Request No. 05930106 (June 25, 1993); Kleinman v. U .S.
Postal Serv. , EEOC Request No. 05940585 (Sept . 22, 1994) ; Wills v. Dep't of De f., EEOC
Request No. 05970596 (July 30, 1998). Thus, a claim involving an issue relating to union
representation (e.g. denial of Weingarten Ri ghts) constitutes a collateral attack on the grievance
process. See Spiwa k v. U .S. Postal S erv., EEOC Appeal No. 01991180 (Jan. 26, 2001); Shibel v.
Dep't of the Navy, EEOC Ap peal No. 01987064 (Aug. 12, 1999). A s such, we find that the
dismissal o f claim 3 for failure to stat e a cl aim was appropriate.
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complai nts 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 Com mission has
adopted a "reasonable suspicion" standard (as opposed to a "s upportive facts" standard) to
determine when the forty -five (45) day limitati on 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 sus pects discrimination, but before all the facts that
support a charge of discr imination have become apparent.
The Commission has held that in order to establish EEO Counselor cont act, an individual must
contact an agency official logically connected to the EEO process and exhibit an intent to begin
the EEO process. Robinson v. Dep ’t of the Treasury , EEOC Appeal No. 01A44877 (Apr. 20,
2006). T he Commission has also consistently he ld that a complainant satisfies the criterion of
EEO 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 inte nt to begin the
EEO process. See Cox v. Dep’t of Hous. and Urban Dev., EEOC Request No. 05980083 (July
30, 1998); Allen v. U.S. Postal Serv., EEOC Request No. 05950933 (July 9, 1996).
In this c ase, the last possible date complainant could have been subje cted to discrimination was
July 30, 2020, the effec tive date of his Notice of T ermination. For his complaint to b e
considered timely filed, he should have initiated EEO counseling no later than September 14,
2020.2 Complainant contacted the MHRC on Sep tember 15, 2020. Assuming that the MHRC
was an entit y logically connecte d to the EEO process, Complainant ’s con tact was still untimely.
Furthermore, Complainant ’s February 5, 2021, contact of the A gency’ s EEO Counselor is also
well beyond the 45- day limit . As noted by th e Agency on appeal, Complainant ’s Notice of
Termination inc luded a No tice of Rights section which defined t he appropriate prot ocol for
timely contacting an EEO Counselor . Complainant has not presented any persuasive arguments
or evidence warranting an extension of the time limit for initiating EEO Counselor contact. 2 9
C.F.R. § 1614.105(a)(2). Therefore, his claim s were properly dismissed as untimely.
CONCLUSION
Accordingly, we A FFIRM the Agency’s final dec ision.
STATEMENT OF RI GHTS - ON APPEAL
RECONSI DERATION (M0920)
The Commis sion 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 appellate de cision involved a cl early erroneous interpr etation 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 mus t be filed with EEOC’s Offic e of Federal Operati ons (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 requ est for reconsiderat ion. A party shall ha ve 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 Pu blic Portal, which can be fo und at
https://publicportal.eeoc.gov/Porta l/Login.aspx
2 We note that the 45th day was Sunday, September 13, 2020. There fore, Complainant ha d until
the next bu siness day, Monday, Se ptember 14, 2020, to contact the EEO Couns elor.
Alternatively, Complainant can submit his or her request and arguments to the Dire ctor, Office
of Federal Operations, Equal Employment Opportunity Commiss ion, via regular mail a ddressed
to P.O. Box 77960, Washington, DC 20013, or by certif ied 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 dee med timely filed if OFO receives it by mai l within five days of the
expiration of the applicable filing p eriod. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in di gital format via the EEOC’s
Federal Sector EEO Porta l (FedSEP). See 29 C.F.R. § 1614.403(g). Either p arty’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 pa rty’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timel y filing of the
request. Any supporting documentati on must be submitted together with the req uest 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 th e 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 ac tion,
you must name as the defendant in the complain t the person who is the official Agency he ad 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 loc al 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 processin g of your complaint .
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to fi le a civil action but cannot pa y 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. S imilarly, if you cannot afford an attorney to repres ent you in the civil action, you may
reque st the co urt to appoint an attorney for you. You m ust submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the C ommission. The
court has the sole discretion to gran t or deny these type s of requests.
Such re quests do not alter the time limits for filing a c ivil action (please read the paragraph titled
Complainant’s Right to File a Civil Action for the specific time l imits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
November 22, 2021
Date | [
"Lingad v. U .S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993)",
"Kleinman v. U .S. Postal Serv., EEOC Request No. 05940585 (Sept . 22, 1994)",
"Wills v. Dep't of De f., EEOC Request No. 05970596 (July 30, 1998)",
"Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999)",
"Cox v. De... | [
-0.09538642317056656,
0.09245530515909195,
-0.043497759848833084,
0.02063070982694626,
-0.03187250345945358,
0.03643559664487839,
0.014759411104023457,
-0.024757808074355125,
0.022798091173171997,
0.025239598006010056,
0.027126453816890717,
0.008353962562978268,
0.009717078879475594,
-0.03... |
329 | https://www.eeoc.gov/sites/default/files/decisions/2022_03_02/2021004705.pdf | 2021004705.pdf | PDF | application/pdf | 14,200 | Joshua F.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. | July 12, 2021 | Appeal Number: 2021004705
Background:
At the time of events giving rise to this complaint, Complainant worked as a Contact
Representative, GS -0962-05, at the Agency’s Kansas City Teleservice Center in Kansas City,
Missouri. Complainant received his excepted servi ce appointment effective September 29, 2019. H is
appointment was subject to satisfactory comp letion of a one -year p robationary period. D uring
his proba tionary period, he was issued a No tice of Termination which was effective July 30,
2020. The Notice included a “Notice of Rights ” which indicated that if “ you believe that your
termination is sole ly based on race, color, religion, sex, pregnancy, national origin, disability ,
genetic information , or reprisal for prior Equal Employment Opportunity (EEO ) activity , you
have the right to file a complaint through the Agenc y’s EEO procedure. ” The Notice also
informed Complain ant that “[y]ou must first cons ult an EEO Counselor within 45 calendar da ys
after the effective date of this action. ”
1 This case has been randomly as signed a pseudonym which will replace Complainant’s name
when the decision is published to non- parties and the Commission’s website.
On September 15, 2020, Complainant emailed the Missouri Department of Labor (DOL)
regar ding hi s termination and alleged discriminat ion at the Agency. On September 28, 2020, a
representative from the Missouri Commission on Human Rights (MCHR) emailed the Complainant and informed him that if he had filed a claim with the EEOC, there was no ne ed to
file with their agency as they had a work share agreement. The record is absent additional
communication between Complainant and MCHR following this exchange until February 2021.
On February 1, 2021, Complainant emailed MCHR and asked , "… if I underst and correctly this
filing also files/protects my rights with the EEOC, correct?" On February 9, 2021, MCHR
emailed Complainant and indicated that they had received his intake, but that his case was past
their 180- day time limit. MCHR further exp laine d that i f they found jurisdict ion, the EEOC had
a 300- day time limit and they could share his case with EEOC. In a response on the same date,
Complainant stated that he filed his initial concern mid -September 2020, and he was released
from work on J uly 30, 2020, and was therefore within the 45- day limit. He quest ioned whether
this protected the 180- day filing time period with MCHR.
On February 18, 2021 MCHR responded and explained that the 180- day filing time was in terms
of when MCHR filed the charge of discrimination, rather than the time an intake is filed. MCHR
noted that while the Complainant did send the intake within the 180- day period, because they
were not a ble to get a charge created then, they would instead send the case to the EEOC to
investi gate as the E EOC had a 300- day filing period.
Complainant contacted an E EO counselor at the Agency on February 5, 2021. On May 18, 2021,
Complainant filed a formal complaint alleging that the Agency subjected him to discrimi nation
on the bases of race (African -American) and color (Black) when:
1. Beginning in M arch 2020, Complainant was subjected to non- sexual harassment,
including when an avatar was created of him which greatly exaggerated t he
darkness of his skin, his hobby was listed as napping, and he was spoken down to
as if he had a mental condition ;
2. On July 30, 2020, he was provided a N otice of T ermination During Probationary
Period ; and
3. Management denied him Weingarten rights .
On Jul y 12, 2021, t he Agency dismissed co mplainant's complaint for untimely EEO counselor
contact, finding that he had not initiated the EEO process within 45 days of the date of the matter
alleged t o be discriminatory . 29 C.F.R. § 1614.107(a)(2). The Agency a lso dismissed claim 3
regar ding the denial of W eingarten Rights pursuant to 29 C.F.R. § 1614.107(a)( 1) for failure to
state a claim . The Agency noted that claim 3 constituted a collateral attack and impermissibly
used the EEO process.
This appeal followed. On appeal, Complainant argue s that his contact was timely as is app arent
from his email exch anges with MCHR.
In response , the Agency argues that Complainant was aware of the 45 -day period due to the
Notice of Rights attached to his Notice of Termination. T he Notice of Rights expla ined that if
Complainant believed his termination was due to a protected basis, he had the right to file a
complaint through the Agency ’s EEO procedure. The Notice of Rights also explained that
Complainant had to consult an EEO counselor within 45 ca lenda r days after the effective date of
his termination.
Legal Analysis:
the Commission’s website.
On September 15, 2020, Complainant emailed the Missouri Department of Labor (DOL)
regar ding hi s termination and alleged discriminat ion at the Agency. On September 28, 2020, a
representative from the Missouri Commission on Human Rights (MCHR) emailed the Complainant and informed him that if he had filed a claim with the EEOC, there was no ne ed to
file with their agency as they had a work share agreement. The record is absent additional
communication between Complainant and MCHR following this exchange until February 2021.
On February 1, 2021, Complainant emailed MCHR and asked , "… if I underst and correctly this
filing also files/protects my rights with the EEOC, correct?" On February 9, 2021, MCHR
emailed Complainant and indicated that they had received his intake, but that his case was past
their 180- day time limit. MCHR further exp laine d that i f they found jurisdict ion, the EEOC had
a 300- day time limit and they could share his case with EEOC. In a response on the same date,
Complainant stated that he filed his initial concern mid -September 2020, and he was released
from work on J uly 30, 2020, and was therefore within the 45- day limit. He quest ioned whether
this protected the 180- day filing time period with MCHR.
On February 18, 2021 MCHR responded and explained that the 180- day filing time was in terms
of when MCHR filed the charge of discrimination, rather than the time an intake is filed. MCHR
noted that while the Complainant did send the intake within the 180- day period, because they
were not a ble to get a charge created then, they would instead send the case to the EEOC to
investi gate as the E EOC had a 300- day filing period.
Complainant contacted an E EO counselor at the Agency on February 5, 2021. On May 18, 2021,
Complainant filed a formal complaint alleging that the Agency subjected him to discrimi nation
on the bases of race (African -American) and color (Black) when:
1. Beginning in M arch 2020, Complainant was subjected to non- sexual harassment,
including when an avatar was created of him which greatly exaggerated t he
darkness of his skin, his hobby was listed as napping, and he was spoken down to
as if he had a mental condition ;
2. On July 30, 2020, he was provided a N otice of T ermination During Probationary
Period ; and
3. Management denied him Weingarten rights .
On Jul y 12, 2021, t he Agency dismissed co mplainant's complaint for untimely EEO counselor
contact, finding that he had not initiated the EEO process within 45 days of the date of the matter
alleged t o be discriminatory . 29 C.F.R. § 1614.107(a)(2). The Agency a lso dismissed claim 3
regar ding the denial of W eingarten Rights pursuant to 29 C.F.R. § 1614.107(a)( 1) for failure to
state a claim . The Agency noted that claim 3 constituted a collateral attack and impermissibly
used the EEO process.
This appeal followed. On appeal, Complainant argue s that his contact was timely as is app arent
from his email exch anges with MCHR.
In response , the Agency argues that Complainant was aware of the 45 -day period due to the
Notice of Rights attached to his Notice of Termination. T he Notice of Rights expla ined that if
Complainant believed his termination was due to a protected basis, he had the right to file a
complaint through the Agency ’s EEO procedure. The Notice of Rights also explained that
Complainant had to consult an EEO counselor within 45 ca lenda r days after the effective date of
his termination.
ANALYSIS AND FINDINGS
With regard to the Agency’ s decision regardin g claim 3 involving Complainant ’s Weingarten
Rights, Complainant must rais e such claims within the collective bargaining agreement process
and not here. Under 29 C.F.R. § 1614.107(a)(1), the EEO process cannot be used to lodge a
collateral attack against another proceeding. “A claim that can be characterized as a collateral
attack, by definition, involves a challenge to another forum's proc eeding , suc h as the grievance
process, the unemployment compensation process, or the workers' c ompensation process.” See
Lingad v. U .S. Postal Serv. , EEOC Request No. 05930106 (June 25, 1993); Kleinman v. U .S.
Postal Serv. , EEOC Request No. 05940585 (Sept . 22, 1994) ; Wills v. Dep't of De f., EEOC
Request No. 05970596 (July 30, 1998). Thus, a claim involving an issue relating to union
representation (e.g. denial of Weingarten Ri ghts) constitutes a collateral attack on the grievance
process. See Spiwa k v. U .S. Postal S erv., EEOC Appeal No. 01991180 (Jan. 26, 2001); Shibel v.
Dep't of the Navy, EEOC Ap peal No. 01987064 (Aug. 12, 1999). A s such, we find that the
dismissal o f claim 3 for failure to stat e a cl aim was appropriate.
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complai nts 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 Com mission has
adopted a "reasonable suspicion" standard (as opposed to a "s upportive facts" standard) to
determine when the forty -five (45) day limitati on 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 sus pects discrimination, but before all the facts that
support a charge of discr imination have become apparent.
The Commission has held that in order to establish EEO Counselor cont act, an individual must
contact an agency official logically connected to the EEO process and exhibit an intent to begin
the EEO process. Robinson v. Dep ’t of the Treasury , EEOC Appeal No. 01A44877 (Apr. 20,
2006). T he Commission has also consistently he ld that a complainant satisfies the criterion of
EEO 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 inte nt to begin the
EEO process. See Cox v. Dep’t of Hous. and Urban Dev., EEOC Request No. 05980083 (July
30, 1998); Allen v. U.S. Postal Serv., EEOC Request No. 05950933 (July 9, 1996).
In this c ase, the last possible date complainant could have been subje cted to discrimination was
July 30, 2020, the effec tive date of his Notice of T ermination. For his complaint to b e
considered timely filed, he should have initiated EEO counseling no later than September 14,
2020.2 Complainant contacted the MHRC on Sep tember 15, 2020. Assuming that the MHRC
was an entit y logically connecte d to the EEO process, Complainant ’s con tact was still untimely.
Furthermore, Complainant ’s February 5, 2021, contact of the A gency’ s EEO Counselor is also
well beyond the 45- day limit . As noted by th e Agency on appeal, Complainant ’s Notice of
Termination inc luded a No tice of Rights section which defined t he appropriate prot ocol for
timely contacting an EEO Counselor . Complainant has not presented any persuasive arguments
or evidence warranting an extension of the time limit for initiating EEO Counselor contact. 2 9
C.F.R. § 1614.105(a)(2). Therefore, his claim s were properly dismissed as untimely. | Joshua F.,1
Complainant,
v.
Andrew M. Saul,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 2021004705
Agency No. KC-21-0231- SSA
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's deci sion dated July 12, 2021, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contact
Representative, GS -0962-05, at the Agency’s Kansas City Teleservice Center in Kansas City,
Missouri. Complainant received his excepted servi ce appointment effective September 29, 2019. H is
appointment was subject to satisfactory comp letion of a one -year p robationary period. D uring
his proba tionary period, he was issued a No tice of Termination which was effective July 30,
2020. The Notice included a “Notice of Rights ” which indicated that if “ you believe that your
termination is sole ly based on race, color, religion, sex, pregnancy, national origin, disability ,
genetic information , or reprisal for prior Equal Employment Opportunity (EEO ) activity , you
have the right to file a complaint through the Agenc y’s EEO procedure. ” The Notice also
informed Complain ant that “[y]ou must first cons ult an EEO Counselor within 45 calendar da ys
after the effective date of this action. ”
1 This case has been randomly as signed a pseudonym which will replace Complainant’s name
when the decision is published to non- parties and the Commission’s website.
On September 15, 2020, Complainant emailed the Missouri Department of Labor (DOL)
regar ding hi s termination and alleged discriminat ion at the Agency. On September 28, 2020, a
representative from the Missouri Commission on Human Rights (MCHR) emailed the Complainant and informed him that if he had filed a claim with the EEOC, there was no ne ed to
file with their agency as they had a work share agreement. The record is absent additional
communication between Complainant and MCHR following this exchange until February 2021.
On February 1, 2021, Complainant emailed MCHR and asked , "… if I underst and correctly this
filing also files/protects my rights with the EEOC, correct?" On February 9, 2021, MCHR
emailed Complainant and indicated that they had received his intake, but that his case was past
their 180- day time limit. MCHR further exp laine d that i f they found jurisdict ion, the EEOC had
a 300- day time limit and they could share his case with EEOC. In a response on the same date,
Complainant stated that he filed his initial concern mid -September 2020, and he was released
from work on J uly 30, 2020, and was therefore within the 45- day limit. He quest ioned whether
this protected the 180- day filing time period with MCHR.
On February 18, 2021 MCHR responded and explained that the 180- day filing time was in terms
of when MCHR filed the charge of discrimination, rather than the time an intake is filed. MCHR
noted that while the Complainant did send the intake within the 180- day period, because they
were not a ble to get a charge created then, they would instead send the case to the EEOC to
investi gate as the E EOC had a 300- day filing period.
Complainant contacted an E EO counselor at the Agency on February 5, 2021. On May 18, 2021,
Complainant filed a formal complaint alleging that the Agency subjected him to discrimi nation
on the bases of race (African -American) and color (Black) when:
1. Beginning in M arch 2020, Complainant was subjected to non- sexual harassment,
including when an avatar was created of him which greatly exaggerated t he
darkness of his skin, his hobby was listed as napping, and he was spoken down to
as if he had a mental condition ;
2. On July 30, 2020, he was provided a N otice of T ermination During Probationary
Period ; and
3. Management denied him Weingarten rights .
On Jul y 12, 2021, t he Agency dismissed co mplainant's complaint for untimely EEO counselor
contact, finding that he had not initiated the EEO process within 45 days of the date of the matter
alleged t o be discriminatory . 29 C.F.R. § 1614.107(a)(2). The Agency a lso dismissed claim 3
regar ding the denial of W eingarten Rights pursuant to 29 C.F.R. § 1614.107(a)( 1) for failure to
state a claim . The Agency noted that claim 3 constituted a collateral attack and impermissibly
used the EEO process.
This appeal followed. On appeal, Complainant argue s that his contact was timely as is app arent
from his email exch anges with MCHR.
In response , the Agency argues that Complainant was aware of the 45 -day period due to the
Notice of Rights attached to his Notice of Termination. T he Notice of Rights expla ined that if
Complainant believed his termination was due to a protected basis, he had the right to file a
complaint through the Agency ’s EEO procedure. The Notice of Rights also explained that
Complainant had to consult an EEO counselor within 45 ca lenda r days after the effective date of
his termination.
ANALYSIS AND FINDINGS
With regard to the Agency’ s decision regardin g claim 3 involving Complainant ’s Weingarten
Rights, Complainant must rais e such claims within the collective bargaining agreement process
and not here. Under 29 C.F.R. § 1614.107(a)(1), the EEO process cannot be used to lodge a
collateral attack against another proceeding. “A claim that can be characterized as a collateral
attack, by definition, involves a challenge to another forum's proc eeding , suc h as the grievance
process, the unemployment compensation process, or the workers' c ompensation process.” See
Lingad v. U .S. Postal Serv. , EEOC Request No. 05930106 (June 25, 1993); Kleinman v. U .S.
Postal Serv. , EEOC Request No. 05940585 (Sept . 22, 1994) ; Wills v. Dep't of De f., EEOC
Request No. 05970596 (July 30, 1998). Thus, a claim involving an issue relating to union
representation (e.g. denial of Weingarten Ri ghts) constitutes a collateral attack on the grievance
process. See Spiwa k v. U .S. Postal S erv., EEOC Appeal No. 01991180 (Jan. 26, 2001); Shibel v.
Dep't of the Navy, EEOC Ap peal No. 01987064 (Aug. 12, 1999). A s such, we find that the
dismissal o f claim 3 for failure to stat e a cl aim was appropriate.
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complai nts 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 Com mission has
adopted a "reasonable suspicion" standard (as opposed to a "s upportive facts" standard) to
determine when the forty -five (45) day limitati on 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 sus pects discrimination, but before all the facts that
support a charge of discr imination have become apparent.
The Commission has held that in order to establish EEO Counselor cont act, an individual must
contact an agency official logically connected to the EEO process and exhibit an intent to begin
the EEO process. Robinson v. Dep ’t of the Treasury , EEOC Appeal No. 01A44877 (Apr. 20,
2006). T he Commission has also consistently he ld that a complainant satisfies the criterion of
EEO 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 inte nt to begin the
EEO process. See Cox v. Dep’t of Hous. and Urban Dev., EEOC Request No. 05980083 (July
30, 1998); Allen v. U.S. Postal Serv., EEOC Request No. 05950933 (July 9, 1996).
In this c ase, the last possible date complainant could have been subje cted to discrimination was
July 30, 2020, the effec tive date of his Notice of T ermination. For his complaint to b e
considered timely filed, he should have initiated EEO counseling no later than September 14,
2020.2 Complainant contacted the MHRC on Sep tember 15, 2020. Assuming that the MHRC
was an entit y logically connecte d to the EEO process, Complainant ’s con tact was still untimely.
Furthermore, Complainant ’s February 5, 2021, contact of the A gency’ s EEO Counselor is also
well beyond the 45- day limit . As noted by th e Agency on appeal, Complainant ’s Notice of
Termination inc luded a No tice of Rights section which defined t he appropriate prot ocol for
timely contacting an EEO Counselor . Complainant has not presented any persuasive arguments
or evidence warranting an extension of the time limit for initiating EEO Counselor contact. 2 9
C.F.R. § 1614.105(a)(2). Therefore, his claim s were properly dismissed as untimely.
CONCLUSION
Accordingly, we A FFIRM the Agency’s final dec ision.
STATEMENT OF RI GHTS - ON APPEAL
RECONSI DERATION (M0920)
The Commis sion 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 appellate de cision involved a cl early erroneous interpr etation 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 mus t be filed with EEOC’s Offic e of Federal Operati ons (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 requ est for reconsiderat ion. A party shall ha ve 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 Pu blic Portal, which can be fo und at
https://publicportal.eeoc.gov/Porta l/Login.aspx
2 We note that the 45th day was Sunday, September 13, 2020. There fore, Complainant ha d until
the next bu siness day, Monday, Se ptember 14, 2020, to contact the EEO Couns elor.
Alternatively, Complainant can submit his or her request and arguments to the Dire ctor, Office
of Federal Operations, Equal Employment Opportunity Commiss ion, via regular mail a ddressed
to P.O. Box 77960, Washington, DC 20013, or by certif ied 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 dee med timely filed if OFO receives it by mai l within five days of the
expiration of the applicable filing p eriod. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in di gital format via the EEOC’s
Federal Sector EEO Porta l (FedSEP). See 29 C.F.R. § 1614.403(g). Either p arty’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 pa rty’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timel y filing of the
request. Any supporting documentati on must be submitted together with the req uest 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 th e 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 ac tion,
you must name as the defendant in the complain t the person who is the official Agency he ad 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 loc al 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 processin g of your complaint .
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to fi le a civil action but cannot pa y 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. S imilarly, if you cannot afford an attorney to repres ent you in the civil action, you may
reque st the co urt to appoint an attorney for you. You m ust submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the C ommission. The
court has the sole discretion to gran t or deny these type s of requests.
Such re quests do not alter the time limits for filing a c ivil action (please read the paragraph titled
Complainant’s Right to File a Civil Action for the specific time l imits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
November 22, 2021
Date | [
"Lingad v. U .S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993)",
"Kleinman v. U .S. Postal Serv., EEOC Request No. 05940585 (Sept . 22, 1994)",
"Wills v. Dep't of De f., EEOC Request No. 05970596 (July 30, 1998)",
"Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999)",
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330 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01986021_r.txt | 01986021_r.txt | TXT | text/plain | 14,364 | July 7, 1998 | Appeal Number: 01986021
Background:
Appellant initiated contact with an EEO Counselor on March 17, 1998.
On June 1, 1998, appellant filed a formal EEO complaint wherein she
alleged that she had been discriminated against on the basis of her sex
(female) when she was not selected for a career appointment.
In its final decision, the agency dismissed 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 March 17, 1998,
was more than 45 days after when appellant learned in October 1997, that
she had not been selected for a career position because she had three
accidents on her work record. According to the agency, appellant should
have been aware of the time limit for contacting an EEO Counselor because
posters setting forth the 45-day limitation period were clearly on display
at appellant's work facility. The record contains an affidavit from a
Human Resources Associate, wherein she states that posters containing the
45-day time limit were on display by time clocks and in the break room.
A copy of a poster containing the 45-day time limit is also contained
in the record.
On appeal, appellant contends that she was unaware of the 45-day
limitation period for contacting an EEO Counselor. Appellant states
that a poster dated January 1990 was posted, but it was not visible.
According to appellant, access to the bulletin board is partially
blocked and a large cloth book bag hangs over and covers the EEO poster.
Appellant states that this poster was outdated as it listed the 30-day
limitation period. Appellant claims that a more recent poster was not
posted until April 1998, and that poster does not mention the 45-day
time period. With regard to when she was notified of her nonselection,
appellant states that she was given this information in November 1997.
Appellant mentions that in November 1997, she saw an EEO poster on a
bulletin board by the managers' mail case. Appellant states that she
did not read that there was a 45-day time limit to file an EEO claim, but
that she cannot swear that the poster lacked information on this issue.
Appellant states that she contacted an EEO Counselor after she received
a letter on March 16, 1998, confirming that she had been denied a career
position due to her safety record.
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.
Appellant alleged that she was discriminated against when in November
1997, she learned that she had not been selected for a career appointment.
Appellant did not initiate contact with an EEO Counselor until March 17,
1998, after the expiration of the 45-day limitation period. However,
we note that appellant claims that she was unaware of the 45-day
limitation period for contacting an EEO Counselor. The affidavit of the
Human Resources Associate indicates that there are EEO posters posted
on bulletin boards by clocks and in the break room. The record also
contains a poster, which sets forth the 45-day time limit. According to
appellant, the poster at her work site was blocked by a large cloth
book bag and contained the outdated 30-day time limit and it was not
until April 1998, that a poster containing the 45-day time limit was
finally posted. While we note that appellant stated that she did see
an EEO poster in November 1997, on a bulletin board by the managers'
mail case, she stated that she did not read it to see if it contained
the 45-day time limit to file an EEO claim; appellant acknowledged that
she cannot swear that the poster lacked such information. We find
that a supplemental investigation is necessary in order to determine
whether appellant had constructive notice of the proper time period
for contacting an EEO Counselor at the time of the incident 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 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 March 17, 1998. On June 1, 1998, appellant filed a formal EEO complaint wherein she alleged that she had been discriminated against on the basis of her sex (female) when she was not selected for a career appointment. In its final decision, the agency dismissed 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 March 17, 1998, was more than 45 days after when appellant learned in October 1997, that she had not been selected for a career position because she had three accidents on her work record. According to the agency, appellant should have been aware of the time limit for contacting an EEO Counselor because posters setting forth the 45-day limitation period were clearly on display at appellant's work facility. The record contains an affidavit from a Human Resources Associate, wherein she states that posters containing the 45-day time limit were on display by time clocks and in the break room. A copy of a poster containing the 45-day time limit is also contained in the record. On appeal, appellant contends that she was unaware of the 45-day limitation period for contacting an EEO Counselor. Appellant states that a poster dated January 1990 was posted, but it was not visible. According to appellant, access to the bulletin board is partially blocked and a large cloth book bag hangs over and covers the EEO poster. Appellant states that this poster was outdated as it listed the 30-day limitation period. Appellant claims that a more recent poster was not posted until April 1998, and that poster does not mention the 45-day time period. With regard to when she was notified of her nonselection, appellant states that she was given this information in November 1997. Appellant mentions that in November 1997, she saw an EEO poster on a bulletin board by the managers' mail case. Appellant states that she did not read that there was a 45-day time limit to file an EEO claim, but that she cannot swear that the poster lacked information on this issue. Appellant states that she contacted an EEO Counselor after she received a letter on March 16, 1998, confirming that she had been denied a career position due to her safety record. 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. Appellant alleged that she was discriminated against when in November 1997, she learned that she had not been selected for a career appointment. Appellant did not initiate contact with an EEO Counselor until March 17, 1998, after the expiration of the 45-day limitation period. However, we note that appellant claims that she was unaware of the 45-day limitation period for contacting an EEO Counselor. The affidavit of the Human Resources Associate indicates that there are EEO posters posted on bulletin boards by clocks and in the break room. The record also contains a poster, which sets forth the 45-day time limit. According to appellant, the poster at her work site was blocked by a large cloth book bag and contained the outdated 30-day time limit and it was not until April 1998, that a poster containing the 45-day time limit was finally posted. While we note that appellant stated that she did see an EEO poster in November 1997, on a bulletin board by the managers' mail case, she stated that she did not read it to see if it contained the 45-day time limit to file an EEO claim; appellant acknowledged that she cannot swear that the poster lacked such information. We find that a supplemental investigation is necessary in order to determine whether appellant had constructive notice of the proper time period for contacting an EEO Counselor at the time of the incident raised. Accordingly, the agency's decision to dismiss appellant's complaint on the grounds of untimely EEO contact is VACATED. | Shelly A. Meader, )
Appellant, )
)
v. ) Appeal No. 01986021
) Agency No. 4-I-500-0034-98
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 her 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
July 7, 1998. The appeal was postmarked July 30, 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 on the grounds that appellant failed to contact an EEO Counselor
in a timely manner.
BACKGROUND
Appellant initiated contact with an EEO Counselor on March 17, 1998.
On June 1, 1998, appellant filed a formal EEO complaint wherein she
alleged that she had been discriminated against on the basis of her sex
(female) when she was not selected for a career appointment.
In its final decision, the agency dismissed 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 March 17, 1998,
was more than 45 days after when appellant learned in October 1997, that
she had not been selected for a career position because she had three
accidents on her work record. According to the agency, appellant should
have been aware of the time limit for contacting an EEO Counselor because
posters setting forth the 45-day limitation period were clearly on display
at appellant's work facility. The record contains an affidavit from a
Human Resources Associate, wherein she states that posters containing the
45-day time limit were on display by time clocks and in the break room.
A copy of a poster containing the 45-day time limit is also contained
in the record.
On appeal, appellant contends that she was unaware of the 45-day
limitation period for contacting an EEO Counselor. Appellant states
that a poster dated January 1990 was posted, but it was not visible.
According to appellant, access to the bulletin board is partially
blocked and a large cloth book bag hangs over and covers the EEO poster.
Appellant states that this poster was outdated as it listed the 30-day
limitation period. Appellant claims that a more recent poster was not
posted until April 1998, and that poster does not mention the 45-day
time period. With regard to when she was notified of her nonselection,
appellant states that she was given this information in November 1997.
Appellant mentions that in November 1997, she saw an EEO poster on a
bulletin board by the managers' mail case. Appellant states that she
did not read that there was a 45-day time limit to file an EEO claim, but
that she cannot swear that the poster lacked information on this issue.
Appellant states that she contacted an EEO Counselor after she received
a letter on March 16, 1998, confirming that she had been denied a career
position due to her safety record.
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.
Appellant alleged that she was discriminated against when in November
1997, she learned that she had not been selected for a career appointment.
Appellant did not initiate contact with an EEO Counselor until March 17,
1998, after the expiration of the 45-day limitation period. However,
we note that appellant claims that she was unaware of the 45-day
limitation period for contacting an EEO Counselor. The affidavit of the
Human Resources Associate indicates that there are EEO posters posted
on bulletin boards by clocks and in the break room. The record also
contains a poster, which sets forth the 45-day time limit. According to
appellant, the poster at her work site was blocked by a large cloth
book bag and contained the outdated 30-day time limit and it was not
until April 1998, that a poster containing the 45-day time limit was
finally posted. While we note that appellant stated that she did see
an EEO poster in November 1997, on a bulletin board by the managers'
mail case, she stated that she did not read it to see if it contained
the 45-day time limit to file an EEO claim; appellant acknowledged that
she cannot swear that the poster lacked such information. We find
that a supplemental investigation is necessary in order to determine
whether appellant had constructive notice of the proper time period
for contacting an EEO Counselor at the time of the incident raised.
Accordingly, the agency's decision to dismiss appellant's complaint on
the grounds of untimely EEO contact is VACATED. This matter is hereby
REMANDED for further processing pursuant to the ORDER below.
ORDER
The agency is ORDERED to conduct a supplemental investigation which
shall include the following actions:
The agency shall supplement the record with an affidavit or other
statement from individuals in Human Resources or EEO, who have knowledge
of the EEO posters, attesting to whether posters containing the 45-day
time limit were posted at appellant's work site at the time of the
alleged discriminatory incident raised herein.
The agency shall supplement the record with any other evidence regarding
the issue of when appellant had actual or constructive notice of the
time limit for contacting an EEO Counselor.
The agency shall, within thirty (30) calendar days of the date this
decision becomes final, issue a notice of processing or new final agency
decision.
A copy of the notice of processing or 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:
August 20, 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)",
"861 F.2d 746"
] | [
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331 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01997132.txt | 01997132.txt | TXT | text/plain | 13,063 | Peter R. Locke v. Commodity Futures Trading Commission 01997132 March 4, 2002 . Peter R. Locke, Complainant, v. James E. Newsome, Acting Chairman, Commodity Futures Trading Commission, Agency. | March 4, 2002 | Appeal Number: 01997132
Case Facts:
This appeal concerns a case of employment discrimination brought by
Peter R. Locke (complainant) against his employer, the Commodity
Futures Trading Commission (the agency). At all relevant times,
complainant worked at the agency's Division of Economic
Legal Analysis:
Upon review, we agree with the agency's determination that complainant's
complaint was properly dismissed for untimely EEO counselor contact.
Individuals who believe they have been discriminated against must
initiate contact with a[n] [agency EEO] [c]ounselor within 45 days
of the date of the matter alleged to be discriminatory . . . . 29
C.F.R. § 1614.105(a)(1). The matter alleged to be discriminatory
here was a denial of promotion to ADRS. Complainant became aware of
this non-promotion back in October of 1998, but still did not seek out
EEO counseling until sometime in March of 1999 far longer than the
requisite 45 days. Complainant has provided no persuasive justification
for his failure to seek counseling in a timely manner.<1>
Final Decision:
Accordingly, the agency did not err in dismissing his complaint on this basis.<2> See 29 C.F.R. § 1614.107(a)(2) (empowering agencies to dismiss complaints for a complainant's failure to adhere to critical EEO time limits, such as the 45-day rule for contacting an EEO counselor); and Jackson v. United States Postal Service, EEOC Appeal No. 01A14957 (Jan. 15, 2002) (noting that we ordinarily expect complainants to contact agency EEO counselors within 45 days of the date on which they first have reasonable suspicion that discrimination has occurred even if at that point not all of the facts supporting a claim of discrimination have yet surfaced). Accordingly, the FAD dismissing complainant's complaint is affirmed. | Peter R. Locke v. Commodity Futures Trading Commission
01997132
March 4, 2002
.
Peter R. Locke,
Complainant,
v.
James E. Newsome,
Acting Chairman,
Commodity Futures Trading Commission,
Agency.
Appeal No. 01997132
DECISION
This appeal concerns a case of employment discrimination brought by
Peter R. Locke (complainant) against his employer, the Commodity
Futures Trading Commission (the agency). At all relevant times,
complainant worked at the agency's Division of Economic Analysis (DEA)
as a GS-14 level economist. Complainant claims that in October of 1998,
his immediate supervisor (IS) told him that he could not promote
complainant to the open, existing position of Acting Director of the
Research Section (ADRS) in DEA because an Asian American co-worker
who also wanted the position would file an EEO complaint if IS did so.
However, IS also apparently indicated at that time that complainant
would most likely be selected for a new, more permanent Director of
the Research Section role if and when funding for such a position
was authorized.
In the meantime, another white male (WM) was appointed ADRS instead,
and IS subsequently left the agency. As of March of 1999, complainant
still had not been promoted to any director position. WM was still
serving as ADRS, and complainant apparently believed his prospects
for promotion had dimmed considerably. He then sought EEO counseling
in March of 1999, and subsequently filed a formal complaint alleging
that he had been discriminated against when IS refused to appoint him
ADRS because he was not an Asian American. He thus was claiming that
the agency had violated Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. § 2000e et seq. (Title VII).
The agency refused to accept complainant's complaint for investigation,
and issued a final agency decision (FAD) on August 9, 1999. In this
FAD, the agency argued that complainant's complaint should be dismissed
for his failure to contact an EEO counselor within 45 days of the date in
October of 1998 when IS first told him he could not be promoted to the
ADRS job. In the alternative, the agency argued on the merits that
complainant's claim should be dismissed because he had not established
a prima facie case of race discrimination. Complainant filed a timely
notice challenging this FAD, which we docketed as this appeal.
Upon review, we agree with the agency's determination that complainant's
complaint was properly dismissed for untimely EEO counselor contact.
Individuals who believe they have been discriminated against must
initiate contact with a[n] [agency EEO] [c]ounselor within 45 days
of the date of the matter alleged to be discriminatory . . . . 29
C.F.R. § 1614.105(a)(1). The matter alleged to be discriminatory
here was a denial of promotion to ADRS. Complainant became aware of
this non-promotion back in October of 1998, but still did not seek out
EEO counseling until sometime in March of 1999 far longer than the
requisite 45 days. Complainant has provided no persuasive justification
for his failure to seek counseling in a timely manner.<1> Accordingly,
the agency did not err in dismissing his complaint on this basis.<2> See
29 C.F.R. § 1614.107(a)(2) (empowering agencies to dismiss complaints
for a complainant's failure to adhere to critical EEO time limits,
such as the 45-day rule for contacting an EEO counselor); and Jackson
v. United States Postal Service, EEOC Appeal No. 01A14957 (Jan. 15, 2002)
(noting that we ordinarily expect complainants to contact agency EEO
counselors within 45 days of the date on which they first have reasonable
suspicion that discrimination has occurred even if at that point not
all of the facts supporting a claim of discrimination have yet surfaced).
Accordingly, the FAD 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 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 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; see also EEO MD-110, at 9-18. 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 the
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted 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 (S0900)
Complainant has the right to file a civil action in an appropriate United
States District Court within ninety (90) calendar days from the date that
complainant receives this decision. If complainant files a civil action,
complainant 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 complainant's case in court. Agency or department
means the national organization, and not the local office, facility or
department in which complainant works. If complainant files a request
to reconsider and also files a civil action, filing a civil action will
terminate the administrative processing of the complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If complainant decides to file a civil action, and if complainant does
not have or cannot afford the services of an attorney, complainant may
request that the Court appoint an attorney to represent complainant and
that the Court permit complainant 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 complainant's 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 entitled
(Right to File A Civil Action).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 4, 2002
__________________
Date
1We are empowered to waive this 45-day deadline if certain mitigating
factors exist. See, e.g., 29 C.F.R. § 1614.105(a)(2) (providing that the
agency or this Commission can extend the 45-day time limit . . . when
[an] individual shows that he or she was not notified of the time limits
and was not otherwise aware of them . . .). And complainant does
contend, in a statement he submitted on appeal, that he certainly was
not aware of the short [45-day] time frame . . . [and] was shocked by
the brief period available for [filing] EEO complaints. Complainant's
Appeal Brief (Sept. 24, 1999), at 3. However, in the very same paragraph
of his appeal statement, complainant also concedes that he did not
recall the very short time frame being raised in EEO training courses,
although it is obviously in the book. Id. Thus, by his own admission,
he attended at least two EEO training classes and possessed a booklet
which apparently contained critical EEO information (presumably including
important time lines). On these facts, we believe it is fair to impute
constructive knowledge to complainant of the 45-day EEO counselor contact
rule, and therefore refuse to toll it.
Complainant also might have avoided our strict adherence to this rule
if he had shown that some sort of continuing violation had occurred
in this case. See, e.g., Anisman v. Department of the Treasury, EEOC
Request No. 05A11283 (Apr. 12, 2001) (where we ruled that because [a]
complainant . . . contacted an EEO Counselor within 45 calendar days
of an occurrence of [an] allegedly on-going discriminatory employment
practice, his EEO [c]ounselor contact was timely as to that allegedly
unlawful employment practice, whether or not he suspected discrimination
more than 45-calendar days before his EEO [c]ounselor contact). There
is no convincing evidence that any such continuing violation was being
committed here, however. Complainant does argue (again, in his appeal
brief) that it was not until after February 1999 that the filing of
an EEO complaint became reasonable. That is the discriminatory action,
involving a stringing along' of the employee while promising promotion,
[which was not] completed [until] February 1999. Complainant's Appeal
Brief (Sept. 24, 1999), at 1. Complainant also acknowledges though,
that he consciously postponed contacting an EEO counselor or filing a
formal EEO complaint in October of 1998 because he held out the hope
that he would still be promoted and did not want to sour his relations
with management by engaging in EEO activity. As complainant put it,
[s]uch . . . action on my part at that time would clearly be seen
by reasonable people as acting against my own interest. In fact, by
filing the complaint and this appeal I know, as all employees know,
that they have clearly crossed a line with their employer, and that
normal employee relations are permanently changed. Thus, while there
was a high probability for alternate remedies, I would have been foolish
to pay that high permanent price by filing an EEO complaint at a time
when the prospect for promotion still loomed large. Id. at 4.
Thus, it is undeniable that complainant voluntarily chose to defer the
filing of a complaint beyond the applicable deadline. As the agency
argued on appeal, he was willing to forego complaining about the title
Acting Director of Research' in the hopes that the agency would permit
a fully funded, new position of Director of Research to be created
. . . . However, [his] contention that DEA management plan[ned] to
create a permanent position, even if true, does not render [his] claim
timely with respect to the [denial of] the title of Acting Director of
Research. Agency's Appeal Brief (Dec. 1, 1999), at 5-6. We agree.
We see no reason to extricate complainant from the consequences of this
decision not to file a timely complaint simply because, in hindsight,
his hopes for a subsequent promotion proved illusory.
2However, we decline to adopt the agency's alternative rationale
for rejecting this complaint. Indeed, we admonish the agency not to
confuse (as it seems in its FAD and appeal brief to do) the failure
to state a claim with the failure to establish a prima facie case of
discrimination. The former is a proper basis for dismissing a case
procedurally. The latter is a finding that can only be made after
addressing the merits of the case substantively. To state a claim
of discrimination (and thus to avoid dismissal for failure to do so),
a complainant need only allege that he or she suffered a present harm or
loss with respect to a term, condition, or privilege of employment because
of the complainant's race, national origin, color, sex, religion, age,
or disability. See, e.g., Contreras v. Department of Transportation, EEOC
Appeal No. 01A04342 (Feb. 11, 2002); cf. Marsh v. Department of Interior,
EEOC Appeal No. 01A20127 (Jan. 29, 2002) (holding that [t]he only proper
questions in determining whether a claim is within the purview of the
EEO process are (1) whether the complainant is an aggrieved employee and
(2) whether she has alleged employment discrimination covered by the EEO
statutes). One thus need not create a prima facie case of disparate
treatment, as the agency appears to believe, merely to state a claim
of unlawful employment discrimination.
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332 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a14567.txt | 01a14567.txt | TXT | text/plain | 5,724 | Gereka M. Custis v. Department of Defense 01A14567 January 15, 2002 . Gereka M. Custis, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Agency. | January 15, 2002 | Appeal Number: 01A14567
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.
Complainant sought EEO counseling on March 9, 2001, claiming that she
had been discriminated against when on January 3, 2001, (1) her desk was
moved without prior notice; (2) her supervisor yelled at her and pounded
on a desk; and (3) she was denied a performance award. Subsequently,
complainant filed a formal complaint on the bases of disability and in
reprisal for prior protected activity, regarding the matters for which
she underwent EEO counseling, discussed above. Complainant stated that
mentally, [she was] not able to go through the EEO process [because
she was in] no condition to think clearly and [her] condition was not
getting better.
The agency issued a final decision dismissing the complaint for untimely
EEO Counselor contact after finding that complainant had sought EEO
counseling 19 days beyond the 45-day time frame.
On appeal, complainant contends that she was unaware of the 45-day time
limit and that she was never advised by the Human Resources office to seek
EEO counseling, even though she sought their assistance. In response,
the agency contends that complainant had access to the electronic
bulletin board where the agency disseminates its EEO policy with the
pertinent time limitations. The agency further contends that posted on
all official bulletin boards are EEO posters with the applicable time
limits, and submits copies of the EEO posters.
The record discloses that the alleged discriminatory event occurred on
January 3, 2001, but that complainant did not initiate contact with
an EEO Counselor until March 9, 2001, which is beyond the forty-five
(45) day limitation period. 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. | Gereka M. Custis v. Department of Defense
01A14567
January 15, 2002
.
Gereka M. Custis,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
Agency.
Appeal No. 01A14567
Agency No. CLNORF01001
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.
Complainant sought EEO counseling on March 9, 2001, claiming that she
had been discriminated against when on January 3, 2001, (1) her desk was
moved without prior notice; (2) her supervisor yelled at her and pounded
on a desk; and (3) she was denied a performance award. Subsequently,
complainant filed a formal complaint on the bases of disability and in
reprisal for prior protected activity, regarding the matters for which
she underwent EEO counseling, discussed above. Complainant stated that
mentally, [she was] not able to go through the EEO process [because
she was in] no condition to think clearly and [her] condition was not
getting better.
The agency issued a final decision dismissing the complaint for untimely
EEO Counselor contact after finding that complainant had sought EEO
counseling 19 days beyond the 45-day time frame.
On appeal, complainant contends that she was unaware of the 45-day time
limit and that she was never advised by the Human Resources office to seek
EEO counseling, even though she sought their assistance. In response,
the agency contends that complainant had access to the electronic
bulletin board where the agency disseminates its EEO policy with the
pertinent time limitations. The agency further contends that posted on
all official bulletin boards are EEO posters with the applicable time
limits, and submits copies of the EEO posters.
The record discloses that the alleged discriminatory event occurred on
January 3, 2001, but that complainant did not initiate contact with
an EEO Counselor until March 9, 2001, which is beyond the forty-five
(45) day limitation period. 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 (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 15, 2002
Date
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333 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a42337.txt | 01a42337.txt | TXT | text/plain | 22,572 | Arlo L. Christy v. Department of the Army 01A42337 August 17, 2004 . Arlo L. Christy, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency. | August 17, 2004 | Appeal Number: s
Case Facts:
Complainant timely filed the captioned appeals with this Commission from
two agency final decisions, dated February 10, 2004 and May 20, 2004,
respectively, dismissing the captioned complaints. Therein, complainant
alleged 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. The Commission consolidates and accepts the appeals.
See 29 C.F.R. § 1614.405 and 29 C.F.R. § 1614.606.
On September 11, 2003, complainant initiated EEO Counselor contact.
Informal efforts to resolve his concerns were unsuccessful.
In Agency No. ARAFSC-03-DEC-0001 (herein after referred to as complaint
1"), filed on January 15, 2004, complainant claimed that he was the victim
of unlawful employment discrimination on the bases of national origin
(association with Korean wife) and in reprisal for prior EEO activity.
In its final decision, dated February 10, 2004, the agency framed,
in narrative form, complainant's claims as follows:<1>
Complainant's first-line supervisor (S) subjected him to a hostile work
environment, on numerous occasions, the most recent being January 12,
2002;
On January 29, 2002, S improperly initiated a criminal investigation
division (CID) complaint against complaint, which was false, in
retaliation for his report of S's January 12, 2002 misconduct to a named
manager (M);
In May 2002, S withheld evidence from the CID investigator as an act
of reprisal;
M failed to address complainant's report concerning S's purported
harassment, as well as the damage to complainant's reputation which
occurred subsequent to his report of harassment;
M failed to correct the false information provided by S to the CID
investigator;
M refused to act on a February 16, 2002 e-mail from complainant requesting
assistance to repay an outstanding Living Quarters Allowance (LQA)
balance; and
An incident of discrimination occurring in December 2003, identified
by complainant as the most recent occurrence of discrimination, but not
further described.
The agency dismissed claims 1 through 6 on the grounds of untimely
EEO Counselor contact. The agency found that complainant's initial
EEO Counselor contact occurred well beyond the 45-day time limit.<2>
The agency further determined that an extension of the time limit was
not warranted because complainant was aware of the time limit because he
filed prior EEO complaints in 1998 and 1999, and should have reasonably
suspected discrimination at the time the incidents at issue occurred.
The agency then dismissed claim 7 for failure to state a claim, finding
that complainant failed to present sufficient information to articulate
a claim.
Regarding Agency No. ARSEOUL-04-FEB-0004 (herein after referred to
as complaint 2"), complainant contacted an EEO Counselor on February
10, 2004, and filed a formal complaint on March 23, 2004. Therein,
complainant claimed discrimination on the bases of national origin
(association with Korean wife); disability (association with disabled
wife) and in reprisal for prior EEO activity.
In its final decision, dated May 20, 2004, the agency framed the claims
as follows:
On or about September 13, 2002, an identified agency official failed
to mitigate actual and/or potential damages associated with the
implementation of a Statement of Understanding Regarding Conditions
and Eligibility for accepting LQA, (SOU) a document which he knew or
should have known was discriminatory;
An identified agency official issued a letter to complainant that barred
his wife from further entry to Camp Carroll sometime in December 2001,
based on information contained in military police blotter reports;
Sometime in September 2002, an identified agency official failed to
ensure a proper review of the SOU prior to its implementation by civilian
personnel offices in Korea;
In February 2002, CID opened a criminal investigation against complainant
based on false and misleading information provided by S, who had
a retaliatory motive complainant. In connection with the criminal
investigation, the CID agents threatened complainant's brother-in-law and
mother-in-law with criminal sanctions; accessed his personal real estate
records without permission; and obtained eleven protected documents
without proper authorization;
A CID agent failed to disclose that he had a personal association with
S during the course of the investigation;
On or about December 2000, an agency staff emergency room physician
denied emergency medical treatment to complainant's wife and failed to
properly examine her;
On or about December 2000 to June 2001, the Inspector General failed to
properly respond to a report of discrimination that complainant filed
with that office in connection with the actions of the aforementioned
emergency room physician;
In December 2003, an identified agency official retaliated against
complainant based on his September 2003 complaint indicting him for
discriminatory acts.
The agency dismissed claims (a) through (g) on the grounds of untimely
EEO Counselor contact, finding that complainant was aware of the time
limit due to filing prior EEO complaints, as well as EEO training.
In further addressing claim (a), the agency noted that complainant
filed a Merit System Protection Board (MSPB) appeal on this same matter.
The agency further noted that complainant attempted to amend the appeal
on June 12, 2003, to additionally allege discrimination, such that
he clearly suspected discrimination as of this date. Further, the
agency alternatively dismissed claim (a) for failure to state a claim.
The agency found that the harm identified by complainant, e.g., the SOU
was used as evidence against him in the CID investigation, resulting in an
8 month constructive termination; suspension of his security clearance;
violation of his civil rights and privacy rights; and threats made
against in-laws, did not constitute actionable harm within the purview
of the EEOC's authority. Also, the agency determined that the alleged
constructive termination and suspended security clearance occurred
at his current employing activity (in the United States), after his
departure from duty in Korea. The agency noted noting that a partial
acceptance letter issued by the United States EEO office on March 4,
2004 indicates that complainant previously presented these issues ,
such that he is now restating the same claims that are currently pending
before the agency.<3> Additionally, the agency determined that the EEOC
has specifically declared that it has no authority to review a security
clearance determinations or Privacy Act violations.
The agency also alternatively dismissed claim (b) for failure to state
a claim. The agency found that complainant was not aggrieved in a term
or condition of employment when his wife was barred from Camp Carroll.
Regarding claim (c), the agency alternatively dismissed it as being the
same claim as raised in claim (a), and also for failure to state a claim,
for the same reasons specified in claim (a).
The agency then alternatively dismissed claim (d) for failure to state
a claim. The agency made reference to a December 29, 2003 narrative
wherein complainant raised the same issues discussed in claim (a), noting
that this matter is inextricably intertwined with the CID investigation,
outside of the purview of the Commission's authority.
Regarding claim (e), the agency also alternatively dismissed it for
failure to state a claim, again finding that this matter was subsumed in
the CID investigation, and that complainant otherwise failed to identify
an actionable harm.
The agency also alternatively dismissed claims (f) and (g) for failure
to state a claim, again finding that complainant failed to identify an
actionable harm.
Regarding claim (h), the agency determined that it would neither accept
or dismiss it, but instead advised complainant to contact the EEO office
at his present place of employment.
Finally, in addressing complainant's contention that the issue of
timeliness is moot due to the agency's continued discriminatory practice
of using the above described SOU, the agency determined that this claim
was a generalized grievance, and failed to constitute an actionable claim.
Therefore, lacking a timely actionable claim, the agency declined to
extend the time limit.
On appeal, in pertinent part, complainant argues that the circumstances
of this case warrant an extension of the time limit for EEO Counselor
contact. Specifically, complainant argues that filing EEO complaints
nearly five years previously is not sufficient to presume knowledge of
the current time limit given that it might have changed. Additionally,
complainant argues that the agency failed to prove that he had either
actual or constructive knowledge of the time limit, asserting that
it failed to submit any evidence that it provided complainant with
contemporaneous notice of the time limit. In this regard, complainant
asserts that the EEO training he received in May 2001 focused on
harassment, and did not include the time limit for contacting an
EEO Counselor. Complainant additionally argues that because the
agency failed to provide him with pertinent information, especially
concerning the CID investigation, he could not have formed a suspicion
of discrimination until later, after which he timely made EEO Counselor
contact. More specifically, complainant indicates that:
On or about June 12, 2003, I requested the [MSPB] Administrative Judge
assigned to the case allow me to include the allegation of discrimination
in the complaint. This was the first time since I initially reported
S's discrimination to M did I reasonably believe that the actions being
taken against me were predicated on a discriminatory act (retaliation).
Alternatively, complainant avers that his report of harassment to M,
and his even earlier contacts with the Inspector General's office, should
be construed as EEO Counselor contact, averring that these contacts are
logically connected to the EEO process. Finally, complainant avers
that all of his claims should be viewed as timely under a continuing
violation theory.
Legal Analysis:
The Commission consolidates and accepts the appeals.
See 29 C.F.R. § 1614.405 and 29 C.F.R. § 1614.606.
On September 11, 2003, complainant initiated EEO Counselor contact.
Informal efforts to resolve his concerns were unsuccessful.
In Agency No. ARAFSC-03-DEC-0001 (herein after referred to as complaint
1"), filed on January 15, 2004, complainant claimed that he was the victim
of unlawful employment discrimination on the bases of national origin
(association with Korean wife) and in reprisal for prior EEO activity.
In its final decision, dated February 10, 2004, the agency framed,
in narrative form, complainant's claims as follows:<1>
Complainant's first-line supervisor (S) subjected him to a hostile work
environment, on numerous occasions, the most recent being January 12,
2002;
On January 29, 2002, S improperly initiated a criminal investigation
division (CID) complaint against complaint, which was false, in
retaliation for his report of S's January 12, 2002 misconduct to a named
manager (M);
In May 2002, S withheld evidence from the CID investigator as an act
of reprisal;
M failed to address complainant's report concerning S's purported
harassment, as well as the damage to complainant's reputation which
occurred subsequent to his report of harassment;
M failed to correct the false information provided by S to the CID
investigator;
M refused to act on a February 16, 2002 e-mail from complainant requesting
assistance to repay an outstanding Living Quarters Allowance (LQA)
balance; and
An incident of discrimination occurring in December 2003, identified
by complainant as the most recent occurrence of discrimination, but not
further described.
The agency dismissed claims 1 through 6 on the grounds of untimely
EEO Counselor contact. The agency found that complainant's initial
EEO Counselor contact occurred well beyond the 45-day time limit.<2>
The agency further determined that an extension of the time limit was
not warranted because complainant was aware of the time limit because he
filed prior EEO complaints in 1998 and 1999, and should have reasonably
suspected discrimination at the time the incidents at issue occurred.
The agency then dismissed claim 7 for failure to state a claim, finding
that complainant failed to present sufficient information to articulate
a claim.
Regarding Agency No. ARSEOUL-04-FEB-0004 (herein after referred to
as complaint 2"), complainant contacted an EEO Counselor on February
10, 2004, and filed a formal complaint on March 23, 2004. Therein,
complainant claimed discrimination on the bases of national origin
(association with Korean wife); disability (association with disabled
wife) and in reprisal for prior EEO activity.
In its final decision, dated May 20, 2004, the agency framed the claims
as follows:
On or about September 13, 2002, an identified agency official failed
to mitigate actual and/or potential damages associated with the
implementation of a Statement of Understanding Regarding Conditions
and Eligibility for accepting LQA, (SOU) a document which he knew or
should have known was discriminatory;
An identified agency official issued a letter to complainant that barred
his wife from further entry to Camp Carroll sometime in December 2001,
based on information contained in military police blotter reports;
Sometime in September 2002, an identified agency official failed to
ensure a proper review of the SOU prior to its implementation by civilian
personnel offices in Korea;
In February 2002, CID opened a criminal investigation against complainant
based on false and misleading information provided by S, who had
a retaliatory motive complainant. In connection with the criminal
investigation, the CID agents threatened complainant's brother-in-law and
mother-in-law with criminal sanctions; accessed his personal real estate
records without permission; and obtained eleven protected documents
without proper authorization;
A CID agent failed to disclose that he had a personal association with
S during the course of the investigation;
On or about December 2000, an agency staff emergency room physician
denied emergency medical treatment to complainant's wife and failed to
properly examine her;
On or about December 2000 to June 2001, the Inspector General failed to
properly respond to a report of discrimination that complainant filed
with that office in connection with the actions of the aforementioned
emergency room physician;
In December 2003, an identified agency official retaliated against
complainant based on his September 2003 complaint indicting him for
discriminatory acts.
The agency dismissed claims (a) through (g) on the grounds of untimely
EEO Counselor contact, finding that complainant was aware of the time
limit due to filing prior EEO complaints, as well as EEO training.
In further addressing claim (a), the agency noted that complainant
filed a Merit System Protection Board (MSPB) appeal on this same matter.
The agency further noted that complainant attempted to amend the appeal
on June 12, 2003, to additionally allege discrimination, such that
he clearly suspected discrimination as of this date. Further, the
agency alternatively dismissed claim (a) for failure to state a claim.
The agency found that the harm identified by complainant, e.g., the SOU
was used as evidence against him in the CID investigation, resulting in an
8 month constructive termination; suspension of his security clearance;
violation of his civil rights and privacy rights; and threats made
against in-laws, did not constitute actionable harm within the purview
of the EEOC's authority. Also, the agency determined that the alleged
constructive termination and suspended security clearance occurred
at his current employing activity (in the United States), after his
departure from duty in Korea. The agency noted noting that a partial
acceptance letter issued by the United States EEO office on March 4,
2004 indicates that complainant previously presented these issues ,
such that he is now restating the same claims that are currently pending
before the agency.<3> Additionally, the agency determined that the EEOC
has specifically declared that it has no authority to review a security
clearance determinations or Privacy Act violations.
The agency also alternatively dismissed claim (b) for failure to state
a claim. The agency found that complainant was not aggrieved in a term
or condition of employment when his wife was barred from Camp Carroll.
Regarding claim (c), the agency alternatively dismissed it as being the
same claim as raised in claim (a), and also for failure to state a claim,
for the same reasons specified in claim (a).
The agency then alternatively dismissed claim (d) for failure to state
a claim. The agency made reference to a December 29, 2003 narrative
wherein complainant raised the same issues discussed in claim (a), noting
that this matter is inextricably intertwined with the CID investigation,
outside of the purview of the Commission's authority.
Regarding claim (e), the agency also alternatively dismissed it for
failure to state a claim, again finding that this matter was subsumed in
the CID investigation, and that complainant otherwise failed to identify
an actionable harm.
The agency also alternatively dismissed claims (f) and (g) for failure
to state a claim, again finding that complainant failed to identify an
actionable harm.
Regarding claim (h), the agency determined that it would neither accept
or dismiss it, but instead advised complainant to contact the EEO office
at his present place of employment.
Finally, in addressing complainant's contention that the issue of
timeliness is moot due to the agency's continued discriminatory practice
of using the above described SOU, the agency determined that this claim
was a generalized grievance, and failed to constitute an actionable claim.
Therefore, lacking a timely actionable claim, the agency declined to
extend the time limit.
On appeal, in pertinent part, complainant argues that the circumstances
of this case warrant an extension of the time limit for EEO Counselor
contact. Specifically, complainant argues that filing EEO complaints
nearly five years previously is not sufficient to presume knowledge of
the current time limit given that it might have changed. Additionally,
complainant argues that the agency failed to prove that he had either
actual or constructive knowledge of the time limit, asserting that
it failed to submit any evidence that it provided complainant with
contemporaneous notice of the time limit. In this regard, complainant
asserts that the EEO training he received in May 2001 focused on
harassment, and did not include the time limit for contacting an
EEO Counselor. Complainant additionally argues that because the
agency failed to provide him with pertinent information, especially
concerning the CID investigation, he could not have formed a suspicion
of discrimination until later, after which he timely made EEO Counselor
contact. More specifically, complainant indicates that:
On or about June 12, 2003, I requested the [MSPB] Administrative Judge
assigned to the case allow me to include the allegation of discrimination
in the complaint. This was the first time since I initially reported
S's discrimination to M did I reasonably believe that the actions being
taken against me were predicated on a discriminatory act (retaliation).
Alternatively, complainant avers that his report of harassment to M,
and his even earlier contacts with the Inspector General's office, should
be construed as EEO Counselor contact, averring that these contacts are
logically connected to the EEO process. Finally, complainant avers
that all of his claims should be viewed as timely under a continuing
violation theory.
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.
In this case, we find that complainant knew, or should have known,
the time limit for contacting an EEO Counselor. The record confirms
that complainant filed his most recent prior complaint on July 5, 1999,
approximately three years (not five years as contended by complainant)
before his September 11, 2003 EEO Counselor contact to initiate
complaint 1. Moreover, although we note complainant's argument that
the time limit may have changed in the intervening years, and that the
agency otherwise failed to provide notice of the time limit during this
time, we find that such an argument presumes that complainant was aware
of the existence of a time limit. Furthermore, we find that there is
no indication that complainant, knowing that there was a time limit,
made any attempt to ascertain whether it had changed. As to complaint
2, we find that complainant clearly knew about the 45-day time limit
by virtue of initiating complaint 1. Specifically, on page 4 of a
42-page statement, dated December 9, 2003, complainant admits that he
was advised of the 45-day time period on September 9, 2003. Therefore,
as to both complaints 1 and 2, we conclude that complainant had knowledge
of the time limit for contacting an EEO Counselor.
Furthermore, we find that the record supports a finding that complainant
clearly had a reasonable suspicion of discrimination regarding those
incidents connected to the CID investigation, which arose in 2002 (all
claims in complaint 1, except claim 7; and claims (a), (c), (d), and (e)
in complaint 2), by virtue of his June 12, 2003 MSPB amendment, as well
as the above referenced appeal statement.<4> As to complaint 2, claims
(b) and (f), we find that due to their nature, i.e., the agency's refusal
to admit complainant's wife to the base or provide her with medical
care, given that the instant complaints are based on associational
discrimination as to his spouse, we find that complainant should have
reasonably suspected discrimination at the time these incidents occurred.
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. U.S. Postal Service, EEOC Request No. 05950933 (July 9, 1996).
After careful review, under the circumstances of this case, we find that
the record fails to support a finding that either M, or the Inspector's
General's Office, may be viewed as officials logically connected to
the EEO process. Moreover, the record additionally fails to show that
complainant exhibited an intent to pursue an EEO complaint at the time he
reported S's alleged harassment to M, or filed his complaints with the
Inspector General. In this regard, we note complainant's statement on
appeal that he first considered filing an EEO complainant after receiving
the MSPB's Initial Decision dismissing his appeal. Additionally, we
find that the continuing violation theory is not applicable here because
complainant fails to present any actionable timely claims. Therefore,
although we have carefully considered complainant's arguments on appeal,
we conclude that an extension of the time limit is not warranted. | Arlo L. Christy v. Department of the Army
01A42337
August 17, 2004
.
Arlo L. Christy,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal Nos. 01A42337
01A44160
Agency Nos. ARAFSC-03-DEC-0001
ARSEOUL-04-FEB-0004
DECISION
Complainant timely filed the captioned appeals with this Commission from
two agency final decisions, dated February 10, 2004 and May 20, 2004,
respectively, dismissing the captioned complaints. Therein, complainant
alleged 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. The Commission consolidates and accepts the appeals.
See 29 C.F.R. § 1614.405 and 29 C.F.R. § 1614.606.
On September 11, 2003, complainant initiated EEO Counselor contact.
Informal efforts to resolve his concerns were unsuccessful.
In Agency No. ARAFSC-03-DEC-0001 (herein after referred to as complaint
1"), filed on January 15, 2004, complainant claimed that he was the victim
of unlawful employment discrimination on the bases of national origin
(association with Korean wife) and in reprisal for prior EEO activity.
In its final decision, dated February 10, 2004, the agency framed,
in narrative form, complainant's claims as follows:<1>
Complainant's first-line supervisor (S) subjected him to a hostile work
environment, on numerous occasions, the most recent being January 12,
2002;
On January 29, 2002, S improperly initiated a criminal investigation
division (CID) complaint against complaint, which was false, in
retaliation for his report of S's January 12, 2002 misconduct to a named
manager (M);
In May 2002, S withheld evidence from the CID investigator as an act
of reprisal;
M failed to address complainant's report concerning S's purported
harassment, as well as the damage to complainant's reputation which
occurred subsequent to his report of harassment;
M failed to correct the false information provided by S to the CID
investigator;
M refused to act on a February 16, 2002 e-mail from complainant requesting
assistance to repay an outstanding Living Quarters Allowance (LQA)
balance; and
An incident of discrimination occurring in December 2003, identified
by complainant as the most recent occurrence of discrimination, but not
further described.
The agency dismissed claims 1 through 6 on the grounds of untimely
EEO Counselor contact. The agency found that complainant's initial
EEO Counselor contact occurred well beyond the 45-day time limit.<2>
The agency further determined that an extension of the time limit was
not warranted because complainant was aware of the time limit because he
filed prior EEO complaints in 1998 and 1999, and should have reasonably
suspected discrimination at the time the incidents at issue occurred.
The agency then dismissed claim 7 for failure to state a claim, finding
that complainant failed to present sufficient information to articulate
a claim.
Regarding Agency No. ARSEOUL-04-FEB-0004 (herein after referred to
as complaint 2"), complainant contacted an EEO Counselor on February
10, 2004, and filed a formal complaint on March 23, 2004. Therein,
complainant claimed discrimination on the bases of national origin
(association with Korean wife); disability (association with disabled
wife) and in reprisal for prior EEO activity.
In its final decision, dated May 20, 2004, the agency framed the claims
as follows:
On or about September 13, 2002, an identified agency official failed
to mitigate actual and/or potential damages associated with the
implementation of a Statement of Understanding Regarding Conditions
and Eligibility for accepting LQA, (SOU) a document which he knew or
should have known was discriminatory;
An identified agency official issued a letter to complainant that barred
his wife from further entry to Camp Carroll sometime in December 2001,
based on information contained in military police blotter reports;
Sometime in September 2002, an identified agency official failed to
ensure a proper review of the SOU prior to its implementation by civilian
personnel offices in Korea;
In February 2002, CID opened a criminal investigation against complainant
based on false and misleading information provided by S, who had
a retaliatory motive complainant. In connection with the criminal
investigation, the CID agents threatened complainant's brother-in-law and
mother-in-law with criminal sanctions; accessed his personal real estate
records without permission; and obtained eleven protected documents
without proper authorization;
A CID agent failed to disclose that he had a personal association with
S during the course of the investigation;
On or about December 2000, an agency staff emergency room physician
denied emergency medical treatment to complainant's wife and failed to
properly examine her;
On or about December 2000 to June 2001, the Inspector General failed to
properly respond to a report of discrimination that complainant filed
with that office in connection with the actions of the aforementioned
emergency room physician;
In December 2003, an identified agency official retaliated against
complainant based on his September 2003 complaint indicting him for
discriminatory acts.
The agency dismissed claims (a) through (g) on the grounds of untimely
EEO Counselor contact, finding that complainant was aware of the time
limit due to filing prior EEO complaints, as well as EEO training.
In further addressing claim (a), the agency noted that complainant
filed a Merit System Protection Board (MSPB) appeal on this same matter.
The agency further noted that complainant attempted to amend the appeal
on June 12, 2003, to additionally allege discrimination, such that
he clearly suspected discrimination as of this date. Further, the
agency alternatively dismissed claim (a) for failure to state a claim.
The agency found that the harm identified by complainant, e.g., the SOU
was used as evidence against him in the CID investigation, resulting in an
8 month constructive termination; suspension of his security clearance;
violation of his civil rights and privacy rights; and threats made
against in-laws, did not constitute actionable harm within the purview
of the EEOC's authority. Also, the agency determined that the alleged
constructive termination and suspended security clearance occurred
at his current employing activity (in the United States), after his
departure from duty in Korea. The agency noted noting that a partial
acceptance letter issued by the United States EEO office on March 4,
2004 indicates that complainant previously presented these issues ,
such that he is now restating the same claims that are currently pending
before the agency.<3> Additionally, the agency determined that the EEOC
has specifically declared that it has no authority to review a security
clearance determinations or Privacy Act violations.
The agency also alternatively dismissed claim (b) for failure to state
a claim. The agency found that complainant was not aggrieved in a term
or condition of employment when his wife was barred from Camp Carroll.
Regarding claim (c), the agency alternatively dismissed it as being the
same claim as raised in claim (a), and also for failure to state a claim,
for the same reasons specified in claim (a).
The agency then alternatively dismissed claim (d) for failure to state
a claim. The agency made reference to a December 29, 2003 narrative
wherein complainant raised the same issues discussed in claim (a), noting
that this matter is inextricably intertwined with the CID investigation,
outside of the purview of the Commission's authority.
Regarding claim (e), the agency also alternatively dismissed it for
failure to state a claim, again finding that this matter was subsumed in
the CID investigation, and that complainant otherwise failed to identify
an actionable harm.
The agency also alternatively dismissed claims (f) and (g) for failure
to state a claim, again finding that complainant failed to identify an
actionable harm.
Regarding claim (h), the agency determined that it would neither accept
or dismiss it, but instead advised complainant to contact the EEO office
at his present place of employment.
Finally, in addressing complainant's contention that the issue of
timeliness is moot due to the agency's continued discriminatory practice
of using the above described SOU, the agency determined that this claim
was a generalized grievance, and failed to constitute an actionable claim.
Therefore, lacking a timely actionable claim, the agency declined to
extend the time limit.
On appeal, in pertinent part, complainant argues that the circumstances
of this case warrant an extension of the time limit for EEO Counselor
contact. Specifically, complainant argues that filing EEO complaints
nearly five years previously is not sufficient to presume knowledge of
the current time limit given that it might have changed. Additionally,
complainant argues that the agency failed to prove that he had either
actual or constructive knowledge of the time limit, asserting that
it failed to submit any evidence that it provided complainant with
contemporaneous notice of the time limit. In this regard, complainant
asserts that the EEO training he received in May 2001 focused on
harassment, and did not include the time limit for contacting an
EEO Counselor. Complainant additionally argues that because the
agency failed to provide him with pertinent information, especially
concerning the CID investigation, he could not have formed a suspicion
of discrimination until later, after which he timely made EEO Counselor
contact. More specifically, complainant indicates that:
On or about June 12, 2003, I requested the [MSPB] Administrative Judge
assigned to the case allow me to include the allegation of discrimination
in the complaint. This was the first time since I initially reported
S's discrimination to M did I reasonably believe that the actions being
taken against me were predicated on a discriminatory act (retaliation).
Alternatively, complainant avers that his report of harassment to M,
and his even earlier contacts with the Inspector General's office, should
be construed as EEO Counselor contact, averring that these contacts are
logically connected to the EEO process. Finally, complainant avers
that all of his claims should be viewed as timely under a continuing
violation theory.
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.
In this case, we find that complainant knew, or should have known,
the time limit for contacting an EEO Counselor. The record confirms
that complainant filed his most recent prior complaint on July 5, 1999,
approximately three years (not five years as contended by complainant)
before his September 11, 2003 EEO Counselor contact to initiate
complaint 1. Moreover, although we note complainant's argument that
the time limit may have changed in the intervening years, and that the
agency otherwise failed to provide notice of the time limit during this
time, we find that such an argument presumes that complainant was aware
of the existence of a time limit. Furthermore, we find that there is
no indication that complainant, knowing that there was a time limit,
made any attempt to ascertain whether it had changed. As to complaint
2, we find that complainant clearly knew about the 45-day time limit
by virtue of initiating complaint 1. Specifically, on page 4 of a
42-page statement, dated December 9, 2003, complainant admits that he
was advised of the 45-day time period on September 9, 2003. Therefore,
as to both complaints 1 and 2, we conclude that complainant had knowledge
of the time limit for contacting an EEO Counselor.
Furthermore, we find that the record supports a finding that complainant
clearly had a reasonable suspicion of discrimination regarding those
incidents connected to the CID investigation, which arose in 2002 (all
claims in complaint 1, except claim 7; and claims (a), (c), (d), and (e)
in complaint 2), by virtue of his June 12, 2003 MSPB amendment, as well
as the above referenced appeal statement.<4> As to complaint 2, claims
(b) and (f), we find that due to their nature, i.e., the agency's refusal
to admit complainant's wife to the base or provide her with medical
care, given that the instant complaints are based on associational
discrimination as to his spouse, we find that complainant should have
reasonably suspected discrimination at the time these incidents occurred.
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. U.S. Postal Service, EEOC Request No. 05950933 (July 9, 1996).
After careful review, under the circumstances of this case, we find that
the record fails to support a finding that either M, or the Inspector's
General's Office, may be viewed as officials logically connected to
the EEO process. Moreover, the record additionally fails to show that
complainant exhibited an intent to pursue an EEO complaint at the time he
reported S's alleged harassment to M, or filed his complaints with the
Inspector General. In this regard, we note complainant's statement on
appeal that he first considered filing an EEO complainant after receiving
the MSPB's Initial Decision dismissing his appeal. Additionally, we
find that the continuing violation theory is not applicable here because
complainant fails to present any actionable timely claims. Therefore,
although we have carefully considered complainant's arguments on appeal,
we conclude that an extension of the time limit is not warranted.
Accordingly, we find that the agency properly dismissed complaint 1
(with the exception of claim 7), and claims (a), (b), (c), (d), (e), and
(f) in complaint 2, on the grounds of untimely EEO Counselor contact,
and we AFFIRM that determination.
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 Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding, and that
such a complaint must be dismissed on the grounds of failure to state
a claim. See Wills v. Department of Defense, EEOC Request No. 05970596
(July 30, 1998).
As to claim (g) in complaint 2, we find that this claim must be construed
as a collateral attack on the process relating to an investigation by
the Inspector General's Office., and must therefore be dismissed on the
grounds of failure to state a claim. The proper forum to raise such
a claim is the forum in which the matter arose....i.e., the Inspector
General's Office. Accordingly, we find that the agency properly
dismissed complaint 2, claim (g), for failure to state a claim, and we
AFFIRM that determination.
Finally, regarding complaint 1, claim 7, and complaint 2, claim (h),
we find that complainant alleges retaliatory harassment, occurring in
December 2003, but provides no pertinent details. Without more, we find
that complainant fails to present adequate information to show that he
was subjected to a hostile work environment, sufficiently severe and
pervasive, as to constitute an actionable claim of harassment. See Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997). Therefore, we find that each of these claims must be dismissed
for failure to state a claim. In doing so, the Commission notes that
the agency declined to accept or dismiss claim (h), in its final decision.
In conclusion, for the reasons set forth above, we find that the
agency properly dismissed complaints 1 and 2, and we AFFIRM that
determination.<5>
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
August 17, 2004
__________________
Date
1The claims are numerated herein for ease
of reference.
2As noted by complainant on appeal, we find that the agency inadvertently
identified December 9, 2003, as the date of initial EEO Counselor
contact, rather than September 11, 2003.
3We note that the March 4, 2004 partial dismissal referenced by the
agency is not of record before the Commission. The record does contain a
copy of a 45-page complaint statement, dated December 29, 2003, although
the record is not sufficient to conclude that this statement is the formal
complaint which is the subject of the March 4, 2004 partial dismissal.
4The Initial Decision issued by the MSPB on September 4, 2003, indicates
that complainant filed an MSPB appeal on May 19, 2003, based on reprisal
for whistle-blowing, regarding the complaints he filed with the Office of
Special Counsel on December 2, 2002 and December 13, 2003. The Initial
Decision indicates that the appeal concerns the initiation of the CID
investigation against him, presumably including the preliminary actions
of S and M, and the ensuing suspension of his security clearance, details,
transfers and assignments.
5Based on our decision to affirm the agency's decision on the grounds
indicated herein, we do not address the alternative grounds for dismissal
used by the agency.
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"Allen v. U.S. Postal Service, EEOC Request No. 05950933 (July 9, 1996)",
"Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994)",
"Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1... | [
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334 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a51315_r.txt | 01a51315_r.txt | TXT | text/plain | 33,442 | 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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335 | https://www.eeoc.gov/sites/default/files/decisions/2024_05_22/2024000883.pdf | 2024000883.pdf | PDF | application/pdf | 30,711 | Neal O .,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. | October 12, 2023 | Appeal Number: 2024000883
Background:
At the time of events giving rise to thi s complaint, Complainant was employed by the Agency as
a Lead Automotive Technician , PS -09, at the Agency’s San Diego Vehicle Maintenance
Facility( “VMF ”) in San Diego, California.
On September 14, 2023, Complainant filed a f ormal EEO c omplaint alleging that the Agency
subjected him to unlawful retaliation for engaging in prior protected EEO activity .
The Agency, in its final decision, framed the claims as follows:
1. On or about February 4, 2023, Complainant ’s was put on Emergency Placement
in an O ff-Duty Status , and,
2. In April and May 2023, his supervisor violated the Privacy Act when he
submitted information about Complainant obtained from the Agency and
submitted the documents to the S uperior Court in San Diego in an attempt to get a
restrainin g order against Complainant .
However, a n examination of Co mplainant ’s formal EEO c omplaint shows he actually framed the
claims as follows:
1. On February 4, 2023, the Regional Manager subjected him to double jeopardy for an incident that occurred on July 13, 2022, and refused to honor their grievance
settlement prior to punishing him with an additional 2- week susp ension for the
same incident .
2. On April 18, 2023, Complainant ’s Supervisor received private settlement
information from Regional Manager to use for his ( Supervisor ’s) personal
purposes in obt aining a restraining order from the San Diego Superior Court .
3. On May 8, 2023, Complainant was given a n email from Su pervisor to Acting
VMF Manager (“VMF Manager ”), wherein Supervisor opined to VMF Manager
that Complainant should be removed from the Agency ; Complainant saw a
second versi on of the same email wherein Su pervis or asked VMF Manager i f
Complainant could be removed, Supervisor altered the emails and submitted them
to the San Diego Superior Court in an effort t o obtain a rest raining order against
Complainant .
4. On May 15, 2023, Supervisor violated the Privacy Act and Postal Policy by taking personally identifying information ( “PII”) and other documents from the
Agen cy, then used these documents to attempt to obt ain a personal restraining
order again st Complainant ; the PII and documents became publ ic when
Supervisor filed them with the San Diego Superior Court .
5. On or about May 15, 2023, Supervisor sought to defame Complainant ’s character
by providing Complainant ’s neighbor with copies of the PII and documents , along
with libelous accusations about Complainant such as stalking, catfishing, and
threatening viol ence.
Complainant recounts that he named Supervisor in mu ltiple EEO complaints and reported
Supervisor , Regional Manager, and other managem ent of ficials to the Office of the Inspector
General ( “OIG”), the United Sta tes Postal Inspection Service ( “USPIS ”), the En vironmental
Protection Agency ( “EPA ”), the BAR (specific organization not identified ), and Departmen t of
Labor's Occupational Health a nd Safety Administration ( “OSHA ”). 2
The Agency dismissed Claim 1 pursuant to 29 C.F.R. § 1614.107(a)(2) , for failure to timely
contact an EEO counselor . The Agency dismissed Claim 2 for failure to state a claim pursuant to
29 C.F.R. § 1614.107(a)( 1) citing two grounds . The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, Compl ainant acknowledges , “it is possible I may have made procedural mistakes in
pursuing my EEO complaint.” However, he contends that he is not an attorney, and due to work
(including overtime) , family responsibilities , and volunteer activities , he lacks the time and
inclination to “become an expert at enforcing EEO employment laws .”
Regarding his reprisal
claim, Complainant notes that he was e lected Union Steward, and credits himself with having his
former supervisor “pushed out of the shop,” forcing a supervisor in training to resign, and
“having [another supervisor in training] removed. ” In detailing his actions aga inst Management ,
Complainant states that he pursued multiple EEO complaints . According to Complainant,
Regional Manag er “has an axe to grin d” against him in part because of Complainant ’s EEO
activity. Likewise, Complainant contends that Supervisor subjects him to ongoing r etaliator y
harassment including but not li mited to the 5 claims listed above. Complainant also contends that
the Agency demonstrated a lack of good faith when it failed to participate in the mediation
process after stating it would do so, and requests instructions for obtaining free legal
represen tation.
The Agency did not file a brief or statement in response to Complainant ’s appeal.
STANDARD OF REVIEW
The Agency’s decision to dismiss a complaint is subject to de novo review by the Commiss ion,
which re quires the Commis sion to examine t he record without regard to the factual and legal
determinations of the previous decision maker and i ssue its dec ision 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 shoul d construe the complaint in the light most favorable to the complainant and
take the complaint’s alleg ations as tr ue. See Cobb v. Dep’t of the Treas. , EEOC Request No.
2 We emphasize that the Commission only accepts claims of reprisal for prior p rotected EEO
activity . See, e.g. Complainant v. Dep’t of the Navy, EEOC Appeal No. 0120131248 ( Oct. 2 3,
2013) (complainant failed to state a claim where his reprisal allegation stem med from his
reporting fraud , waste, and abuse by Agen cy workers and was unrelated to EEO matters ). We
also note that t he Commission does not have jurisdiction over Whistleblower Protection Act
claims. See Reavill v. Dep’t of the Navy, EEOC Appeal No. 05950174 (July 19, 1996).
05970077 (Mar, 13, 1997) . Thus, all reaso nable inferen ces that may be d rawn from the
complaint’s allegations must be made in favor of the complainant.
Legal Analysis:
the Commission’s
own assessment of the record and its interpretation of the law. 29 C.F.R. § 1614.405(a). The
Commission shoul d construe the complaint in the light most favorable to the complainant and
take the complaint’s alleg ations as tr ue. See Cobb v. Dep’t of the Treas. , EEOC Request No.
2 We emphasize that the Commission only accepts claims of reprisal for prior p rotected EEO
activity . See, e.g. Complainant v. Dep’t of the Navy, EEOC Appeal No. 0120131248 ( Oct. 2 3,
2013) (complainant failed to state a claim where his reprisal allegation stem med from his
reporting fraud , waste, and abuse by Agen cy workers and was unrelated to EEO matters ). We
also note that t he Commission does not have jurisdiction over Whistleblower Protection Act
claims. See Reavill v. Dep’t of the Navy, EEOC Appeal No. 05950174 (July 19, 1996).
05970077 (Mar, 13, 1997) . Thus, all reaso nable inferen ces that may be d rawn from the
complaint’s allegations must be made in favor of the complainant.
ANALYSIS
Untimely EEO Contact
The r egulation set forth under 29 C.F.R. §1614.107(a)(2) states, in relevant part, that an agency
shall dismiss a complaint or a portion of a complaint that fa ils to comply with the applicable time
limits contained in §1614.105. Under §1614.105(a)(1), an aggrieved person must initiate contact with an EEOC Counselor within 45 days of the date of the matter alleged to be discrimi natory or,
in the case of a personn el action, within 45 days of the effective date of the action. A n agency or
the Commission may extend the time limit if the complainant establishes that they were unaware
of the time limit, did not know and reasonably shoul d not have known that the discrim inatory
matter or personnel action occurred , that despite due diligence they were prevented by
circumstances beyond their control from contacting the EEO Counselor within the lime limit, or
for other reasons considered suff icient by the agency or Commission. See 29 C.F.R.
§1614.105(a)(2) .
The Comm ission has consistently held that a complainant who has engaged in prior EEO activity
is deemed aware of the time frames required for filing complaints in the EEO procedure. See
Williams v. Dep’t of Homeland Sec., EEOC Appeal No. 0120111236 (Oct. 4, 2011) citing
Coffey v. Dep’t. of the Navy, EEOC Request No. 05901006 (Nov. 16, 1990); see also Kader v.
United Sta tes Postal Serv. , EEOC Request No. 05980473 (Jun . 24, 1999).
The allegation in Claim 1 involves a personnel action (suspension) , so the 45- day limitation
period was triggered on the ef fective date of the Action. The effective date, provided by
Complainant, was February 4, 2023, yet Complainant did not initiate EEO contact until May 15,
2023, which is beyond the 45- day limitation period. By his own a ccount, Complainant has
previously filed “many ” EEO complaints. Therefore, he is deemed aware of the 45 -day
limitation period when the alleged discriminatory act occurred. Complain ant’s professed lack of
legal expertise does not prevent him from meeting a deadline, nor does it justify a waiver of the
limitation period under 29 C.F.R. §1614.105(a)(2) . | Neal O .,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Field Areas and Regions),
Agency.
Appeal No. 2024000883
Agency No. 4V518001223
DECISION
Complainant timely appeal ed with the Equal Employment Opportunity Commission ( “EEOC ” or
“Commission ”) from the Ag ency's October 12, 2023, dismissal of 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 reasons presented below, w e MODIFY the
Agency ’s final decision dismissing Complainant’s complaint and REMAND Claim 2 of this
matter to the Agency for further processing in accordance with the Order below.
ISSUE PRESENTED
Whether the Agency’s final decision properly dismissed Complainant’s Formal EE O Complaint
on the grounds that Claim 1 was not timely raised with an EEO Counselor pur suant to 29 C.F.R.
§ 1614.107(a)(2) , and that Claim 2 failed to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1).
BACKGROUND
At the time of events giving rise to thi s complaint, Complainant was employed by the Agency as
a Lead Automotive Technician , PS -09, at the Agency’s San Diego Vehicle Maintenance
Facility( “VMF ”) in San Diego, California.
On September 14, 2023, Complainant filed a f ormal EEO c omplaint alleging that the Agency
subjected him to unlawful retaliation for engaging in prior protected EEO activity .
The Agency, in its final decision, framed the claims as follows:
1. On or about February 4, 2023, Complainant ’s was put on Emergency Placement
in an O ff-Duty Status , and,
2. In April and May 2023, his supervisor violated the Privacy Act when he
submitted information about Complainant obtained from the Agency and
submitted the documents to the S uperior Court in San Diego in an attempt to get a
restrainin g order against Complainant .
However, a n examination of Co mplainant ’s formal EEO c omplaint shows he actually framed the
claims as follows:
1. On February 4, 2023, the Regional Manager subjected him to double jeopardy for an incident that occurred on July 13, 2022, and refused to honor their grievance
settlement prior to punishing him with an additional 2- week susp ension for the
same incident .
2. On April 18, 2023, Complainant ’s Supervisor received private settlement
information from Regional Manager to use for his ( Supervisor ’s) personal
purposes in obt aining a restraining order from the San Diego Superior Court .
3. On May 8, 2023, Complainant was given a n email from Su pervisor to Acting
VMF Manager (“VMF Manager ”), wherein Supervisor opined to VMF Manager
that Complainant should be removed from the Agency ; Complainant saw a
second versi on of the same email wherein Su pervis or asked VMF Manager i f
Complainant could be removed, Supervisor altered the emails and submitted them
to the San Diego Superior Court in an effort t o obtain a rest raining order against
Complainant .
4. On May 15, 2023, Supervisor violated the Privacy Act and Postal Policy by taking personally identifying information ( “PII”) and other documents from the
Agen cy, then used these documents to attempt to obt ain a personal restraining
order again st Complainant ; the PII and documents became publ ic when
Supervisor filed them with the San Diego Superior Court .
5. On or about May 15, 2023, Supervisor sought to defame Complainant ’s character
by providing Complainant ’s neighbor with copies of the PII and documents , along
with libelous accusations about Complainant such as stalking, catfishing, and
threatening viol ence.
Complainant recounts that he named Supervisor in mu ltiple EEO complaints and reported
Supervisor , Regional Manager, and other managem ent of ficials to the Office of the Inspector
General ( “OIG”), the United Sta tes Postal Inspection Service ( “USPIS ”), the En vironmental
Protection Agency ( “EPA ”), the BAR (specific organization not identified ), and Departmen t of
Labor's Occupational Health a nd Safety Administration ( “OSHA ”). 2
The Agency dismissed Claim 1 pursuant to 29 C.F.R. § 1614.107(a)(2) , for failure to timely
contact an EEO counselor . The Agency dismissed Claim 2 for failure to state a claim pursuant to
29 C.F.R. § 1614.107(a)( 1) citing two grounds . The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, Compl ainant acknowledges , “it is possible I may have made procedural mistakes in
pursuing my EEO complaint.” However, he contends that he is not an attorney, and due to work
(including overtime) , family responsibilities , and volunteer activities , he lacks the time and
inclination to “become an expert at enforcing EEO employment laws .”
Regarding his reprisal
claim, Complainant notes that he was e lected Union Steward, and credits himself with having his
former supervisor “pushed out of the shop,” forcing a supervisor in training to resign, and
“having [another supervisor in training] removed. ” In detailing his actions aga inst Management ,
Complainant states that he pursued multiple EEO complaints . According to Complainant,
Regional Manag er “has an axe to grin d” against him in part because of Complainant ’s EEO
activity. Likewise, Complainant contends that Supervisor subjects him to ongoing r etaliator y
harassment including but not li mited to the 5 claims listed above. Complainant also contends that
the Agency demonstrated a lack of good faith when it failed to participate in the mediation
process after stating it would do so, and requests instructions for obtaining free legal
represen tation.
The Agency did not file a brief or statement in response to Complainant ’s appeal.
STANDARD OF REVIEW
The Agency’s decision to dismiss a complaint is subject to de novo review by the Commiss ion,
which re quires the Commis sion to examine t he record without regard to the factual and legal
determinations of the previous decision maker and i ssue its dec ision 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 shoul d construe the complaint in the light most favorable to the complainant and
take the complaint’s alleg ations as tr ue. See Cobb v. Dep’t of the Treas. , EEOC Request No.
2 We emphasize that the Commission only accepts claims of reprisal for prior p rotected EEO
activity . See, e.g. Complainant v. Dep’t of the Navy, EEOC Appeal No. 0120131248 ( Oct. 2 3,
2013) (complainant failed to state a claim where his reprisal allegation stem med from his
reporting fraud , waste, and abuse by Agen cy workers and was unrelated to EEO matters ). We
also note that t he Commission does not have jurisdiction over Whistleblower Protection Act
claims. See Reavill v. Dep’t of the Navy, EEOC Appeal No. 05950174 (July 19, 1996).
05970077 (Mar, 13, 1997) . Thus, all reaso nable inferen ces that may be d rawn from the
complaint’s allegations must be made in favor of the complainant.
ANALYSIS
Untimely EEO Contact
The r egulation set forth under 29 C.F.R. §1614.107(a)(2) states, in relevant part, that an agency
shall dismiss a complaint or a portion of a complaint that fa ils to comply with the applicable time
limits contained in §1614.105. Under §1614.105(a)(1), an aggrieved person must initiate contact with an EEOC Counselor within 45 days of the date of the matter alleged to be discrimi natory or,
in the case of a personn el action, within 45 days of the effective date of the action. A n agency or
the Commission may extend the time limit if the complainant establishes that they were unaware
of the time limit, did not know and reasonably shoul d not have known that the discrim inatory
matter or personnel action occurred , that despite due diligence they were prevented by
circumstances beyond their control from contacting the EEO Counselor within the lime limit, or
for other reasons considered suff icient by the agency or Commission. See 29 C.F.R.
§1614.105(a)(2) .
The Comm ission has consistently held that a complainant who has engaged in prior EEO activity
is deemed aware of the time frames required for filing complaints in the EEO procedure. See
Williams v. Dep’t of Homeland Sec., EEOC Appeal No. 0120111236 (Oct. 4, 2011) citing
Coffey v. Dep’t. of the Navy, EEOC Request No. 05901006 (Nov. 16, 1990); see also Kader v.
United Sta tes Postal Serv. , EEOC Request No. 05980473 (Jun . 24, 1999).
The allegation in Claim 1 involves a personnel action (suspension) , so the 45- day limitation
period was triggered on the ef fective date of the Action. The effective date, provided by
Complainant, was February 4, 2023, yet Complainant did not initiate EEO contact until May 15,
2023, which is beyond the 45- day limitation period. By his own a ccount, Complainant has
previously filed “many ” EEO complaints. Therefore, he is deemed aware of the 45 -day
limitation period when the alleged discriminatory act occurred. Complain ant’s professed lack of
legal expertise does not prevent him from meeting a deadline, nor does it justify a waiver of the
limitation period under 29 C.F.R. §1614.105(a)(2) .
Accordingly, we find that the Agency properly dismissed Claim 1 for untimely EEO Counselor
contact pursuant to 29 C.F.R. 1614.107(a)(2).
Failure to State a Claim : Reprisal
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 they have been
discriminated against by that agency becaus e of race, color, religion, sex, national origin, age or
disab ility. 29 C.F.R. §§ 1614.103, .106(a).
The Commission's federal sector case precedent has long defined an "aggrieved em ployee" 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. Dep’t of the Air Force , EEOC Request No.
05931049 (Apr. 21, 1994). If the complainant cannot establish that they are aggrieved, the
agency shall dismiss their complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1).
For claims based on reprisal, adverse actions need not qualify as "ult imate employment actions"
or materially affect the terms, conditions or pr ivileges of employment to constitute retaliation.
See Compl ainant v. Dep't of Veterans Affairs , EEOC Appeal No. 0120122790 (Dec.13, 2012).
Instead, it is Commission policy to consider reprisal claims with a broad view of coverage to protect the complainan t from any retaliatory discrimination that is reasonably likely to deter
protected activity. See Maclin v. U nited States Postal Serv ., EEOC Appeal No. 0120070788
(Mar. 29, 2007); Car roll v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000).
Based on Complainant ’s formal EEO c omplaint, Complainant states a claim of reprisal to
include the following timely r aised events :
1. On April 18, 2023, Regional Manager improperly shared information from a settlement agreement between Complainant and the Agency with Supervisor for
non-business related reasons .
2. On May 8, 2023, Complainant was provided with e mails revealing that
Supervisor contacted VMF Manager in an effort to remove Complainant from the
Agency .
3. On May 15, 2023, Supervisor improperly accessed Complainant ’s PII and p rivate
employee records for non- business- related reasons .
Applying the broa d view of coverage afforded to reprisal claims, we find that these alleged
actions, when considered together, are reasonably likely to deter protected activity. Collateral Attack
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). A claim
that can be characterized as a collateral attack, by definition, involves a challenge to another forum's proceeding, such as the gri evance process, the workers' compensation process, or state or
federal litigation. Fisher v. Dep’t of Def., EEOC Request No. 05931059 (Jul. 15, 1994) .
The Agency found Complainant ’s Claims 1 and 3 (identified in its Final Decision as “Claim 2 ”)
to be an impermissible atte mpt to lod ge a collateral attack against United States District Court
proceedings.
The Agency ’s final decision correctly notes that the Privacy Act, 5 U.S.C. § 552(f)(1) provides
an exclusive statutory framework governing the disclosure of identifiable inf ormation contained
in federal systems of records , and jurisdiction rests e xclusively in the United States Dis trict
Courts for matters brought under the Privacy Act. See Bucci v. Dep’t of Education, EEOC
Request Nos. 05890289, 05890290, 05890291 (Apr. 12, 1989).
Complainant ’s assertions in “Claim 2 ” are covered by the Privacy Act. However, the
Commission has previously found that under the broad coverage afforded to reprisal claims, an
alleged viol ation of the Privacy Act may also state a viable claim of re prisal. See Nakesha T. v.
Dep’t of Veterans Affairs , EEOC Appeal No. 2019002985 (Aug. 2, 2019) (“while the
Commission does not have jurisdiction over the Privacy Act, the crux of Complainant ’s claim is
that management instructed an em ployee w ho did not ha ve a “need to know ” to access
Complainant ’s personnel file due to Complainant ’s prior protected EEO activity ”).
Here, the alleged Privacy Act v iolations are part of an overarching claim of reprisal and should
not have been dismissed as an im permissible attempt to lodge a collateral attack . These claims
coincide w ith emails indicating that Supervisor sought Complainant ’s removal from the Agency.
As these actions , considered together, are reasonably likely to deter EEO activity, the alleged
privacy act vi olations in “Claim 2 ” also state a claim of repri sal.
Same Claim
In the alternative, th e Agency found that the allegations in “Claim 2 ” failed to state a claim
because Complainant raised the same claims in a prior EEO complaint. The Commiss ion’s
regul ations under 29 C.F.R. § 1614.107(a)(1) provide for the dismissal of a complaint that states
the same claim that is pending before or has been decided by the Commission or the Agency. To be dismissed as the "same claim," the present formal compl aint and pr ior complaints must have
involved identical matters. In its dismissal, the Agency explaine d that Complainant previousl y raised the allegations in
“Claim 2 ” in Agency Case No. 4V518000823. The Agency re count s that on May 8, 2023,
Compl ainant f iled a Form al EEO Complaint for Agency Case No. 4V518000823, w hich was
dismissed on June 12, 2023, for untimely filing. However, the record is devoid of any evidence
of Agency Case No. 4V518000823. All references to the events alleged in “Claim 2 ” are relation
to the instant complaint.
We note that "the agency has the burden of providing evidence and/or proof to support its final decisions." Ericson v. Dep’ t of the Army , EEOC Request No. 05920623 (Jan. 14, 1993), s ee
also Gens v. Dep’ t of Def ., EEOC Requ est No. 05910837 (Jan. 31, 1992). In Edwina W. v.
United States Postal Serv ice, the Commis sion reversed the agency ’s dismissal for raising the
same clam in a previously filed complaint where the agen cy failed agency failed to provide
evidence, such a s a copy of the fo rmal complaint, of the previously filed claim . EEOC Appeal
No. 0120150885 (Feb. 9, 2017) , see also, Deandre C. v. Dep’t of Veterans Aff. , EEOC Appeal
No. 2024000626 (Apr. 4, 2024) (reversing dismissal for raising the same claim previou sly rais ed
with an EEO Counselor because other than a cas e number, the record contained no information
about the prior EEO action, observing that “the only documentation of these claims in the record
is in the file for the instant complaint.” ) Likewise, th e Agency in this ca se provided no e vidence
of the previous EEO action.
As the Agency did not meet its evidentiary burden, the Commission cannot affirm its dismissal
of the allegations in “Claim 2 ” on the grounds that Complainant raised the same claims in a prior
EEO complai nt.
Restraining Order
In his appeal brief, Complainant alleges that Supervisor , with the assi stance of Management ,
subjected C omplainant to harassment when he attempted to obtain a restraining order against
Complainant. Claims 2 and 4 in Com plainant ’s Formal EEO Complaint also reference
Supervisors alleged attempted restraining order. We have not included the restraining order as
part of Complainant ’s accepted claims for the following reasons:
The issue before us is whether the Agency’s alleged retaliato ry actions (accessing personal
documents, writing emails suggesting Complainant ’s removal) state a claim . Whether these
actions are part of an alleged plan for Supervisor to obtain a r estraining order as further
retaliation ag ainst Com plainant is irrelev ant. See Ray v. United Sta tes Postal S erv., EEO C
Appeal No. 0120083541 (Jul. 26, 2012) citing Osborne v. Dep’t of the Treasury , EEOC Request
No. 05960111 (Jul y 19, 1996) (explaining that the age ncy’s assertion regarding the reason for its
action s goes to t he merits of the formal compla int and is irrelevant to the procedural issue of
whether the complainant stated a claim ).
Moreover, use of the EEO complaint process to interfe re with a restraining order or Supervisor ’s
ability to pursue a restraining order against Compl ainant would constitute an impermissible
collateral attack on the civil action process. See Lopez v. Dep’t of Agriculture , EEOC Appeal
No. 0120121900 (Aug. 21, 2012) . Any dispute Complainant has with the re straining order or
associated legal processes must be r esolve d in civil court.
New Claims & Conduct Outside the Work place
In his appeal brief, Complaina nt alleges that Supervisor continues to harass him, and indicates
that he experiences Supervisor ’s harassing conduct in and out of the workplace. Sometimes the
Commission will consider conduct outside the workplace when determining whether a
harassment allegation states a cl aim pursuant to 29 C.F.R. § 1614.107(a)( 1). See, e.g. Knowlton
v. Dep’ t of Transp., EEOC Appeal N o. 0120121642 ( Jun. 15, 2012) ( an allegation of harassment
on social media could be part of a discriminatory hostile work environment and should not be dismissed for failure to state a claim) . However, these claims were not raised in Complain ant’s
Formal E EO Compl aint so th ey will not be adjudicated here.
If Complainant wishes to pursue additional harassment claims, he must do so by contacting an
EEO Counselor pursuant to 29 C.F.R. § 1614.105. See Hall v. United States Postal Serv. , EEOC
Appeal No. 0120031342 (Apr. 24, 2003).
Dissatisfaction with EEO Process
Allegations of dissatisfaction with an agency's processing of a previously filed or pending complaint cannot be the subject of an EEO complaint. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (“EEO MD -110”), Ch. 5, IV.A.12 and IV.D
(Aug. 3, 2015), Morris v. Dep't of Def., EEOC Request No. 0520130316 (Aug. 27, 2013) Our
guidance further provides that complaints about the processing of existing complaints should be referred t o the agency offic ial responsible for complaint processing, and/or processed as part of
the original complaint. If no action was taken, the file must contain an explanation of the Agency's reason(s) for not taking any action. EEO MD -110.
The record ref lects that Complainan t properly raised his dissatisfaction with the processing of the
instant complaint, particularly Supervisor ’s failure to attend scheduled mediation, in writing with
the EEO Office prior to filing the instant c omplaint. The record inclu des a n August 29, 2023
letter from the Director of the Agency ’s EEO Office responding to Complainant ’s concerns. The
matter was processed separately under PRE01 82302023.
We find that the Agency properly addressed Complainant ’s concerns . If Complainant disag rees
with the A gency’s response, he may raise them with an EEOC Administrative Judge ( “AJ”) if he
elects to request a hearing following the investigation of the instant complaint.
CONCLUSION
Accordingly, the Ag ency's final decision dismissing Complai nant's complaint i s MODIFIED.
The Commission AFFIRMS the Agency’ s dismissal of Claim 1, and REVERSES the Agency’ s
dismis sal of Claim 2 , as framed in this Decision .
We hereby REMAND the matter to the Agency for further processing in accordance wi th this
Decision and the Or der below.
ORDER (E0224)
Complai nant states the f ollowing viable claim s of unlawful reprisal:
1. On April 18, 2023, Regional Manager improperly shared information from a settlement agreement between Complainant and the Agency with Supervis or, who
did not have a “need to kn ow” about the terms of the agreement .
2. On May 8, 2023, Complainant was provided with e mails revealing that
Supervisor contacted VMF Manager in an effort to remove Complainant from the
Agency .
3. On May 15, 2023, Supervisor i mproperly accessed Complaina nt’s PII and pri vate
employee records for reasons unrelated to Complainant ’s employment .
The Agency is ordered to process the se remanded claims in accordance with 29 C.F.R.
§ 1614.108 et seq . The Agency shall acknowledge to the Compl ainant that it has received th e
remanded claims with in 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 withi n one hundred fifty (150) cale ndar days of the date
this deci sion w as issued, unless the matter is otherwi se 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 Compla inant’s request.
As pr ovided in the s tatement entitled “Implementation of th e Commission's Decision,” the
Agency must send to the Compli ance Officer: 1) a copy of the Agency’s letter of
acknowledgment to Complainant, 2) a copy of the Agency’s notice that t ransmits the
investiga tive 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 .
IMPLEMENTA TION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) a nd § 1614.502, compliance with the Commission’s corrective
action is mandatory. W ithin seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall s ubmit via the Federal Sector EEO Por tal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the compliance docket n umber 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
require d 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 al l submissions to the Complainant and his /her representative.
If the Age ncy 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 c ompliance with the Commission’s orde r 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
underlyi ng complaint in accordance with the p aragraph 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 t o 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 compl aint,
including any petition for enforcement, will be terminated . See 29 C.F.R. § 1614.409.
Failure by an agency to either file a compli ance report or implement any of the orders set forth in
this decision, without good cause shown, may resul t in the referral of this matter to the Office of
Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcem ent by that agency.
STATEMENT OF RIG HTS - 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 d ecision 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 reconsider ation must be filed with EEOC’s Offic e 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 req uest for reconsideration . A party shall have twenty
(20) calendar days from receipt of another party’s re quest for reconsideration within which to
submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Eq ual Employment
Opportunity Managemen t 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 Pub lic 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 Operati ons, Equal Empl oyment Opportunity C ommission, 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 file d 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). S ee 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 whic h case no proof of
service is requi red.
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 suppor ting documentat ion must be submitte d 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(f) .
COMPLAINANT’S RIGHT TO FILE A CIVIL A CTION (T0124)
This d ecision affirms the Agency’s final de cision/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 w ithin 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 continue d administrativ e processing. In the alternative, you may file a civil a ction 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 it s final decision on
your complaint. If you file a civil action, you mus t name as the defendant in the complaint the
person who is the official Agency head or department hea d, identifying that person by their full
name and official title. Failure to do so may result in the dismissal of you r case in court.
“Agency” or “depart ment” 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 c ivil action will terminate the admin istrative processing of your complai nt.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, cost s, 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 c annot afford an attorney to represent you in the civil action, you may
request the court to appoint a n attorney for you. You must submit the requests for waiver of
court costs or appoi ntment of an attorney directly to th e court, not the Commission. The
court has the sole discretion to grant or deny these types of requests.
Such requests do not alter the t ime limits for filing a civil action (please read the paragraph titled
Complainant’ s Right to File a Civil Action for t he specific time limits).
FOR THE C OMMISSION:
Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
April 25, 2024
Date | [
"Complainant v. Dep’t of the Navy, EEOC Appeal No. 0120131248 ( Oct. 2 3, 2013)",
"Reavill v. Dep’t of the Navy, EEOC Appeal No. 05950174 (July 19, 1996)",
"Williams v. Dep’t of Homeland Sec., EEOC Appeal No. 0120111236 (Oct. 4, 2011)",
"Coffey v. Dep’t. of the Navy, EEOC Request No. 05901006 (Nov. 16, 1990)"... | [
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0.0835207849740982,
0.0026816148310899734,
0.020833715796470642,
0.022425577044487,
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0.04051501303911209,
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0.006953180767595768,
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336 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120113762.r.txt | 0120113762.r.txt | TXT | text/plain | 18,878 | David P. Fazio, Complainant, v. Michael B. Donley, Secretary, Department of the Air Force, Agency. | July 11, 2011 | Appeal Number: 0120113762
Background:
At the time of events giving rise to this complaint, Complainant worked as a Quality Assurance Clerk at the Agency's facility at Tinker AFB, Oklahoma. He was also a union official who represented other employees in both union and EEO matters.
On November 6, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability1 and reprisal for prior protected EEO activity2 when:
1. On July 30, 2008, Complainant's supervisor confronted Complainant about his request for authorization to work on an EEO case where Complainant was acting as representative. Complainant alleges that his supervisor called Complainant a liar.
2. On July 30, 2008, the former Equal Opportunity Director (EEO Director) falsified official government documents and information to allege misrepresentation of official time, and coerced Complainant's immediate supervisor to issue a Notice of Proposed Removal to Complainant.
3. On August 1, 2008, a supervisor (PM) outside of Complainant's chain of command confronted Complainant during his assigned break, verbally humiliated Complainant and demanded that Complainant leave the break room immediately and not come back or visit any area within his supervisory control.
4. On August 1, 2008, PM made false allegations against Complainant and coerced Complainant's first line supervisor to use the false allegations to terminate Complainant from employment.
5. On August 6, 2008, Complainant's supervisor required Complainant to submit a form to request official time in order to meet with an EEO Specialist.
6. On August 5, 2008, another supervisor (JW) outside of Complainant's chain of command fabricated and submitted false information accusing Complainant of being in the supervisor's work area two months earlier on or around May 30, 2008.
7. On August 7, 2008 Complainant became aware that he had been charged 0.45 hours of absence without leave (AWOL), on August 1, 2008, and 1 hour AWOL on May 30, 2008.
8. On August 6, 2008, PM contacted Complainant's supervisor and made false allegations, and coerced Complainant's supervisor to take disciplinary action against the Complainant.
9. On August 6, 2008, Complainant's supervisor confronted Complainant in a hostile, intimidating and threatening manner about the allegations made by PM.
10. On August 11, 2008, PM contacted Complainant's supervisor, made false allegations about Complainant, and coerced Complainant's supervisor to take disciplinary action against Complainant.
11. On August 11, 2008, Complainant's supervisor confronted Complainant in a hostile, intimidating and threatening manner about false allegations made by PM.
12. On August 27, 2008, Complainant's supervisor was confrontational, threatening and intimidating when Complainant responded to the AF 971 Supplement Form, refused to take Complainant's evidence into consideration and refused to investigate the validity of the charges made against Complainant.
13. On October 20, 2008, Complainant's Deputy Branch Manager Chief (Chief), confronted Complainant in a hostile, threatening and intimidating manner when he issued the Decision to Terminate the Complainant from employment.3
14. On October 20, 2008, Complainant's supervisor behaved in a hostile, threatening and intimidating manner when he escorted Complainant to his vehicle upon his termination.
15. On October 20, 2008, Chief behaved in a hostile, threatening and intimidating manner when he escorted Complainant to his vehicle upon his termination.
At the conclusion of the investigation, 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). 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). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
The instant appeal followed. Complainant submitted no brief in support of his appeal.
Legal Analysis:
The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Quality Assurance Clerk at the Agency's facility at Tinker AFB, Oklahoma. He was also a union official who represented other employees in both union and EEO matters.
On November 6, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability1 and reprisal for prior protected EEO activity2 when:
1. On July 30, 2008, Complainant's supervisor confronted Complainant about his request for authorization to work on an EEO case where Complainant was acting as representative. Complainant alleges that his supervisor called Complainant a liar.
2. On July 30, 2008, the former Equal Opportunity Director (EEO Director) falsified official government documents and information to allege misrepresentation of official time, and coerced Complainant's immediate supervisor to issue a Notice of Proposed Removal to Complainant.
3. On August 1, 2008, a supervisor (PM) outside of Complainant's chain of command confronted Complainant during his assigned break, verbally humiliated Complainant and demanded that Complainant leave the break room immediately and not come back or visit any area within his supervisory control.
4. On August 1, 2008, PM made false allegations against Complainant and coerced Complainant's first line supervisor to use the false allegations to terminate Complainant from employment.
5. On August 6, 2008, Complainant's supervisor required Complainant to submit a form to request official time in order to meet with an EEO Specialist.
6. On August 5, 2008, another supervisor (JW) outside of Complainant's chain of command fabricated and submitted false information accusing Complainant of being in the supervisor's work area two months earlier on or around May 30, 2008.
7. On August 7, 2008 Complainant became aware that he had been charged 0.45 hours of absence without leave (AWOL), on August 1, 2008, and 1 hour AWOL on May 30, 2008.
8. On August 6, 2008, PM contacted Complainant's supervisor and made false allegations, and coerced Complainant's supervisor to take disciplinary action against the Complainant.
9. On August 6, 2008, Complainant's supervisor confronted Complainant in a hostile, intimidating and threatening manner about the allegations made by PM.
10. On August 11, 2008, PM contacted Complainant's supervisor, made false allegations about Complainant, and coerced Complainant's supervisor to take disciplinary action against Complainant.
11. On August 11, 2008, Complainant's supervisor confronted Complainant in a hostile, intimidating and threatening manner about false allegations made by PM.
12. On August 27, 2008, Complainant's supervisor was confrontational, threatening and intimidating when Complainant responded to the AF 971 Supplement Form, refused to take Complainant's evidence into consideration and refused to investigate the validity of the charges made against Complainant.
13. On October 20, 2008, Complainant's Deputy Branch Manager Chief (Chief), confronted Complainant in a hostile, threatening and intimidating manner when he issued the Decision to Terminate the Complainant from employment.3
14. On October 20, 2008, Complainant's supervisor behaved in a hostile, threatening and intimidating manner when he escorted Complainant to his vehicle upon his termination.
15. On October 20, 2008, Chief behaved in a hostile, threatening and intimidating manner when he escorted Complainant to his vehicle upon his termination.
At the | David P. Fazio,
Complainant,
v.
Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120113762
Hearing No. 560201000149X
Agency No. 9V1M08392
DECISION
On July 11, 2011, Complainant filed an appeal from the Agency's June 7, 2011, final decision concerning his equal employment opportunity (EEO) complaint 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Quality Assurance Clerk at the Agency's facility at Tinker AFB, Oklahoma. He was also a union official who represented other employees in both union and EEO matters.
On November 6, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability1 and reprisal for prior protected EEO activity2 when:
1. On July 30, 2008, Complainant's supervisor confronted Complainant about his request for authorization to work on an EEO case where Complainant was acting as representative. Complainant alleges that his supervisor called Complainant a liar.
2. On July 30, 2008, the former Equal Opportunity Director (EEO Director) falsified official government documents and information to allege misrepresentation of official time, and coerced Complainant's immediate supervisor to issue a Notice of Proposed Removal to Complainant.
3. On August 1, 2008, a supervisor (PM) outside of Complainant's chain of command confronted Complainant during his assigned break, verbally humiliated Complainant and demanded that Complainant leave the break room immediately and not come back or visit any area within his supervisory control.
4. On August 1, 2008, PM made false allegations against Complainant and coerced Complainant's first line supervisor to use the false allegations to terminate Complainant from employment.
5. On August 6, 2008, Complainant's supervisor required Complainant to submit a form to request official time in order to meet with an EEO Specialist.
6. On August 5, 2008, another supervisor (JW) outside of Complainant's chain of command fabricated and submitted false information accusing Complainant of being in the supervisor's work area two months earlier on or around May 30, 2008.
7. On August 7, 2008 Complainant became aware that he had been charged 0.45 hours of absence without leave (AWOL), on August 1, 2008, and 1 hour AWOL on May 30, 2008.
8. On August 6, 2008, PM contacted Complainant's supervisor and made false allegations, and coerced Complainant's supervisor to take disciplinary action against the Complainant.
9. On August 6, 2008, Complainant's supervisor confronted Complainant in a hostile, intimidating and threatening manner about the allegations made by PM.
10. On August 11, 2008, PM contacted Complainant's supervisor, made false allegations about Complainant, and coerced Complainant's supervisor to take disciplinary action against Complainant.
11. On August 11, 2008, Complainant's supervisor confronted Complainant in a hostile, intimidating and threatening manner about false allegations made by PM.
12. On August 27, 2008, Complainant's supervisor was confrontational, threatening and intimidating when Complainant responded to the AF 971 Supplement Form, refused to take Complainant's evidence into consideration and refused to investigate the validity of the charges made against Complainant.
13. On October 20, 2008, Complainant's Deputy Branch Manager Chief (Chief), confronted Complainant in a hostile, threatening and intimidating manner when he issued the Decision to Terminate the Complainant from employment.3
14. On October 20, 2008, Complainant's supervisor behaved in a hostile, threatening and intimidating manner when he escorted Complainant to his vehicle upon his termination.
15. On October 20, 2008, Chief behaved in a hostile, threatening and intimidating manner when he escorted Complainant to his vehicle upon his termination.
At the conclusion of the investigation, 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). 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). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
The instant appeal followed. Complainant submitted no brief in support of his appeal.
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 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. (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 absent direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing a prima facie case by demonstrating that he or 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, 411 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, Complainant 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, 120 S.Ct. 2097 (2000); St. Man's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Even assuming arguendo that Complainant established a prima facie case of reprisal discrimination, we find further that the responsible Agency management officials articulated legitimate, non-discriminatory reasons for the disputed actions.
In claim 1, Complainant's supervisor stated that, because of previous problems with Complainant leaving his work area without proper authorization,4 he did not believe that Complainant was acting as an EEO representative as he claimed when he submitted a request for official time. Consequently, Complainant's supervisor conceded that he told Complainant that he did not believe him. In claim 2, which involved the same event as claim 1, the supervsiors said he denied Complainant's request for official time after he checked with the EEO Director and was advised that Complainant was not the designated EEO representative for the employee as Complainant had claimed. As a result, Complainant's supervisor proposed Complainant's removal from the Agency. In response to the proposed removal, Complainant submitted evidence that he had provided his supervisor with the wrong EEO complaint number relating to his request for official time. Consequently, it was discovered that Complainant was, in fact, acting as an EEO representative as he had initially stated. The Agency contends that his supervisor acted based on his initial findings that Complainant had fraudulently submitted a request for official time and was not based on any animus toward Complainant's protected classes.
In claim 3, evidence shows that Complainant was in the break room in an area under the supervision of PM, who was not Complainant's supervisor. Complainant was talking to an employee supervised by PM. PM said he became concerned that his employee was not engaged in work. PM said he asked Complainant to leave the area, stating he had been there long enough. When Complainant stated he was on break, PM told him his break was over and he should return to his work area. PM stated that Complainant refused to leave despite his repeated requests and addressed him rudely. He later contacted Complainant's supervisor and requested that Complainant be told to stay out of PM's work area. The Agency later asserted that Complainant was not on an authorized break, leave or official union business during this incident.
Concerning claims 4, 6, 8, 9, 10 and 11 regarding Complainant's allegations that supervisor PM and supervisor JW made false allegations against him, and coerced Complainant's supervisor into taking disciplinary action against Complainant, the responsible officials indicated indicated that Complainant caused disruption when he came into the work areas supervised by PM and JW purportedly as a "union representative," but a not as an EEO representative for any employee under the supervision of PM or JW when he entered their work areas. In that regard, supervisors PM and JW, reported Complainant's conduct to Complainant's supervisor as required by Agency policy.
With respect to Complainant's claim that on August 6, 2008, his supervisor required him to submit a Union/Employee Official Time Permit so that he could attend his initial interview with an EEO Specialist (claim 5), his supervisor stated that Complainant did not advise him that the interview was for Complainant's own EEO complaint and not for another employee. It appears that while the form was required by Agency policy when an individual is acting as a representative for another in an EEO matter, it was not generally required when attending to a personal EEO matter. Complainant's supervisor testified that he would not have required Complainant to complete the form if he knew that Complainant was requesting official time with respect to his own EEO complaint.
In claim 7, the Agency management witnesses indicated that because Complainant was not on break or lunch, in an approved leave status or on official time concerning an EEO matter, Complainant was charged absent without leave (AWOL), for 0.45 hours on May 30, 2008 and August 1, 2008 for being in the work areas supervised by PM and JW.
In claims 12, 13, 14 and 15, Complainant alleges that Agency officials were hostile and intimidated him with respect to the Agency's decision to terminate him from employment. Complainant alleges that Agency officials behaved in a hostile and intimidating manner when he was escorted to his vehicle upon his termination from employment. In response to Complainant's claim the involved Agency officials stated they walked approximately 25 feet behind Complainant as he walked to his vehicle upon his termination only to ensure that he left the premises without disrupting the workplace.
Complainant failed to prove, by a preponderance of the evidence, that these proffered legitimate explanations were a pretext for discrimination and/or unlawful retaliation. There appears to be no connection whatsoever to mangement's actions and Complainant's disability. With regard to his retaliation claim, there is no doubt that many of the events at issue were related to Complainant's activities as a union representative. However, there is insufficient evidence to establish a nexus between his protected EEO activity and the events at issue. Complainant is entitled to reasonable official time to serve as an EEO representative, but in this case the supervisors reasonably believed that Complainant was not serving as an EEO representative as he claimed. The supervisors' belief was verified by the Agency's EEO Director. While a mistake on Complainant's part resulted in a misunderstanding in this matter, there is inadequate evidence to support a finding of retaliatory animus for EEO activity. Any potential retaliatory activity for Complainant's union activity needs to be remedied within the Agency's negotiated grievance process or with the filing of an unfair labor practice within the process governed by the Federal Labor Relations Authority, not in the EEO complaint process.
To the extent that Complainant alleges that the Agency's conduct constituted discriminatory harassment, the Commission notes that harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Sys., Inc. at 3, 9 (March 8, 1994). After a review of the record, and considering Complainant's complaint in its entirety, we find that Complainant's claims as alleged do not constitute discriminatory harassment. Complainant failed to prove, as already discussed, that the Agency's actions were unlawfully motivated by discriminatory (because of his disability) or retaliatory animus.
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 no discrimination.
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
August 30, 2013
__________________
Date
1 The record indicates that Complainant had a brain injury in 1996 that affected his mobility on his left side, including some partial paralysis. He also indicated he experienced anxiety and depression, as well as some blurred vision and migraine headaches.
2 The record shows that Complainant had previously filed three EEO complaints of his own, as well as acted as a representative for other employees. Many of the responsible management officials were aware of this past EEO activity.
3 Complainant appealed the actual termination decision to the Merit Systems Protection Board. The record shows that the Agency also dismissed claims concerning two suspensions issued in March 2008 as untimely raised. These suspensions were used to support the termination decision. On appeal, Complainant has not disputed the Agency's decision to dismiss the suspension claims. Therefore, we will not address them further.
4 The record indicates that Complainant was suspended twice in March 2008 as a result of these prior incidents. See note 3 of this decision.
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337 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120122009.txt | 0120122009.txt | TXT | text/plain | 18,004 | Ana E. Estevez, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency. | January 25, 2012 | Appeal Number: 0120122009
Background:
At the time of events giving rise to this complaint, Complainant worked as a Dental Assistant at the Agency's Madigan Army Medical Hospital, Dental Clinic #3 facility in Fort Lewis, Washington. Starting three months after Complainant began working for the Clinic, a soldier began to harass her. The record documents that the harassment began as verbal and then progressed to physical touching, threats and obscene actions. Complainant attempted to bring this matter to the attention of the Non-commissioned Office in Charge (S1), but nothing was done. Another co-worker brought the matter to management's attention regarding the soldier's actions against the co-worker.
On October 4, 2011, the Agency sent Complainant a notice of her right to file a complaint. On October 18, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of national origin (Dominican / Hispanic), sex (female), disability (unspecified), and age (40) when, on unspecified dates from September 2009 to December of 2011, she was sexually harassed and assaulted by a soldier at her workplace.
In May of 2011 and prior to her filing the formal EEO complaint, Complainant filed a work injury claim for stress related to her informal EEO complaint. Complainant continued to work at the Clinic, but on a reduced schedule, due to an injury.
The record on appeal includes witnesses' statements that attest that Complainant notified S1 of the harassment on June 8, 2010 and June 19, 2010. One witness averred in a statement, dated April 4, 2012, that she witnessed "an incident of him once again getting extremely close to her and putting his genital area near her face area" and that "he was also allowed to come back into Dental Clinic 3 on more than one occasion." In addition, Complainant averred that, on June 21, 2010, she "expressed to S1 that she was being over worked, bullied and harassed" by three individuals, including the alleged harasser. She told S1 about her concerns that the soldier was tripping her and hurting her. S1 told Complainant that S1 thought that Complainant "had a personal problem" and "was making a big deal out of nothing." S1 denies that Complainant told her that she was being sexually harassed.
On August 25, 2010, one of Complainant's coworkers (Coworker A) contacted the Agency's EEO Office and initiated counseling regarding the inappropriate conduct of a sexual nature by the same solider, who was also allegedly harassing Complainant. The EEO Office informed management of the situation on, or about, August 30, 2010.
On September 7, 2010, the soldier's supervisor (SGT) reassigned the soldier out of Clinic 3, although the record shows that the soldier was not banned from the premises and did occasionally return to Clinic 3.
During the Agency's criminal investigation of the Coworker's claims, Complainant was identified as a possible witness. Complainant was interviewed in January of 2011 and Complainant told the investigator that, at one unspecified time, while she was seated at her desk, the soldier stood near her with his genital area about an inch from her nose. Complainant told the criminal investigator that she told the solider to move away, that he did and that he did not bother her again after that time. On March 14, 2011, and after Complainant's husband returned from deployment to Iraq and learned of the alleged harassment, Complainant contacted the EEO Counselor to file her own complaint.
In addition, on March 21, 2011, Complainant was seen by one of the Agency's License Marriage and Family Therapists. Complainant provided to the EEO Counselor a letter, dated April 6, 2011, in which the Therapist stated that Complainant was under "significant distress could have been prevented [her] from completing the EEO claim process." The record does not contain medical documentation or evidence created during the period at issue. On March 24, 2011, Complainant relayed to the EEO Counselor other incidents and lewd conduct by the solider toward Complainant.
During March of 2011, Complainant received her midpoint evaluation, which Complainant described as "a very positive outcome and evaluation." After receiving her evaluation, Complainant was cautioned to "watch your back and be careful." Complainant stated that she then felt threatened and that this was an example of the "hostile environment" she had to deal with and she "always felt watched, with fear."
Thereafter, Complainant left the country for an unspecified period of time. When the Agency questioned management why Complainant was not at work, Complainant's husband on May 2, 2011, informed the Agency, by email, that he "currently [has] a general power of attorney to talk and handle all her affairs since she is not capable of doing it herself." The Agency asked for the power of attorney, after Complainant's husband requested what he need to do since Complainant "has exhausted all her sick and annual leave hours and needs some help to determine what she needs to fill out in order for her to continue to get paid for administrative leave, etc." On May 4, 2011, Complainant's husband sent an email to the Agency, stating "[Complainant] is not at work because she has been diagnosis [sic] with a mental medical problem due to stress, anxiety and panic attach [sic] caused by the work place."
Further, the record shows that the Agency provided two hours of training on "Equal Opportunity / Prevention of Sexual Harassment" to 120 employees on February 18, 2010. The record also includes a copy of the EEO signs that the Agency posted at "Building 5164, Utah Avenue" to advise employees to contact the Civilian EEO Office within 45 days of the alleged discrimination. S1 averred that there was a poster on the employee bulletin board in Dental Clinic 3, but the location was not specified.
The Agency dismissed Complainant's EEO complaint on the grounds of untimely EEO Counselor contact, finding that Complainant contacted an EEO Counselor on her claims on March 14, 2011, beyond the 45-day time limit set by the Regulations. The Agency deemed the EEO Counselor contact occurred 73 days late and that she failed to provide an explanation.
CONTENTIONS ON APPEAL
Complainant alleges that she timely reported the harassment to S1 as an "EEO officer" and the record includes statements of witnesses who confirmed that Complainant told S1 of her concerns as early as June 8, 2010.
In response, the Agency states that, even if Complainant reported the behavior to the Officer-In-Charge (S1) in the summer of 2010, that does not relieve her of her duty to initiate EEO counseling with the Civilian EEO Office.
Legal Analysis:
EEOC Regulation 29 C.F.R. §1614.105(a) requests that an aggrieved person must contact an EEO Counselor within 45 days of the matter alleged to be discriminatory. EEOC regulation 29 C.F.R. §1614.107(a)(2) requires an agency to dismiss a complaint that fails to comply with the applicable time limits.
EEOC Regulations provide that an agency or the Commission shall extend the time limits when the individual shows that she was not notified of the time limits and despite due diligence 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 EEOC Regulation at §1614.604(c) provides that the time limits are subject to waiver, estoppel and equitable tolling.
When a complainant claims that a physical condition prevents her from meeting a particular filing deadline, we have held that in order to justify an untimely filing, a complainant must be so incapacitated by the condition as to render her physically unable to make a timely filing. See Camacho v., Department of Defense (Army & Air Force Exchange Service), EEOC Appeal No. 0120110339 (March 30, 2011). The same is true regarding claims of incapacity related to psychiatric or psychological conditions. See Crear v. United States Postal Service, EEOC Request No. 05920700 (October 29, 1992).
The record contains a letter from an Agency's Therapist indicating that Complainant was suffering from severe debilitating distress. This supports Complainant's contention that, during the applicable period, she was so incapacitated as to prevent her from timely contacting an EEO Counselor. Moreover, the record contains statements from witnesses who confirm that Complainant did make attempts to raise her EEO concerns as early as the summer of 2010, on several occasions and the witnesses had seen Complainant "in emotional distress due to thee encounters with [the alleged harasser]".
The record discloses that the alleged discrimination ceased in December of 2011. For purposes of our analysis, therefore, we will consider the period of alleged discrimination to be from June of 2009 to December 31, 2010. Witnesses confirm that Complainant worked at the Clinic at least until April 4, 2011. The record indicates that the Agency transferred Complainant, which reinforced the fear of retaliation.
The burden is on the Agency to show that Complainant was aware of the discrimination and that her EEO contact was untimely. The Agency did not meet that burden. The record does not show that Complainant was on notice. We note that Complainant alleged discrimination that began as early as June of 2009. The Agency's EEO training did not occur until 2010. In addition, the record indicates that the poster was in the main building; and the record does not show the specific location in the clinic where the posters were placed.
Further, the Agency provided Complainant with her notice of her right to file a complaint which indicates a recognition that the Agency was on notice of her claims.
Finally, EEOC Management Directive 110, Section 2-1, at footnote one, states that "the Commission consistently has held that a complainant may satisfy the criterion of EEO Counselor contact by initiating contact with any 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 Kinan v. Department of Defense, EEOC Request No. 05990249 (May 6, 1999).
Taken together, we find that the record presents persuasive and sufficient evidence warranting an extension of the time limit for initiating EEO contact and / or for finding that Complainant exercised due diligence in making timely EEO contact, given the circumstances of this unusual case. We find that the Agency's dismissal was improper. | Ana E. Estevez,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120122009
Agency No. ARLEWIS11MAR01014
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated January 25, 2012, 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., 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 a Dental Assistant at the Agency's Madigan Army Medical Hospital, Dental Clinic #3 facility in Fort Lewis, Washington. Starting three months after Complainant began working for the Clinic, a soldier began to harass her. The record documents that the harassment began as verbal and then progressed to physical touching, threats and obscene actions. Complainant attempted to bring this matter to the attention of the Non-commissioned Office in Charge (S1), but nothing was done. Another co-worker brought the matter to management's attention regarding the soldier's actions against the co-worker.
On October 4, 2011, the Agency sent Complainant a notice of her right to file a complaint. On October 18, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of national origin (Dominican / Hispanic), sex (female), disability (unspecified), and age (40) when, on unspecified dates from September 2009 to December of 2011, she was sexually harassed and assaulted by a soldier at her workplace.
In May of 2011 and prior to her filing the formal EEO complaint, Complainant filed a work injury claim for stress related to her informal EEO complaint. Complainant continued to work at the Clinic, but on a reduced schedule, due to an injury.
The record on appeal includes witnesses' statements that attest that Complainant notified S1 of the harassment on June 8, 2010 and June 19, 2010. One witness averred in a statement, dated April 4, 2012, that she witnessed "an incident of him once again getting extremely close to her and putting his genital area near her face area" and that "he was also allowed to come back into Dental Clinic 3 on more than one occasion." In addition, Complainant averred that, on June 21, 2010, she "expressed to S1 that she was being over worked, bullied and harassed" by three individuals, including the alleged harasser. She told S1 about her concerns that the soldier was tripping her and hurting her. S1 told Complainant that S1 thought that Complainant "had a personal problem" and "was making a big deal out of nothing." S1 denies that Complainant told her that she was being sexually harassed.
On August 25, 2010, one of Complainant's coworkers (Coworker A) contacted the Agency's EEO Office and initiated counseling regarding the inappropriate conduct of a sexual nature by the same solider, who was also allegedly harassing Complainant. The EEO Office informed management of the situation on, or about, August 30, 2010.
On September 7, 2010, the soldier's supervisor (SGT) reassigned the soldier out of Clinic 3, although the record shows that the soldier was not banned from the premises and did occasionally return to Clinic 3.
During the Agency's criminal investigation of the Coworker's claims, Complainant was identified as a possible witness. Complainant was interviewed in January of 2011 and Complainant told the investigator that, at one unspecified time, while she was seated at her desk, the soldier stood near her with his genital area about an inch from her nose. Complainant told the criminal investigator that she told the solider to move away, that he did and that he did not bother her again after that time. On March 14, 2011, and after Complainant's husband returned from deployment to Iraq and learned of the alleged harassment, Complainant contacted the EEO Counselor to file her own complaint.
In addition, on March 21, 2011, Complainant was seen by one of the Agency's License Marriage and Family Therapists. Complainant provided to the EEO Counselor a letter, dated April 6, 2011, in which the Therapist stated that Complainant was under "significant distress could have been prevented [her] from completing the EEO claim process." The record does not contain medical documentation or evidence created during the period at issue. On March 24, 2011, Complainant relayed to the EEO Counselor other incidents and lewd conduct by the solider toward Complainant.
During March of 2011, Complainant received her midpoint evaluation, which Complainant described as "a very positive outcome and evaluation." After receiving her evaluation, Complainant was cautioned to "watch your back and be careful." Complainant stated that she then felt threatened and that this was an example of the "hostile environment" she had to deal with and she "always felt watched, with fear."
Thereafter, Complainant left the country for an unspecified period of time. When the Agency questioned management why Complainant was not at work, Complainant's husband on May 2, 2011, informed the Agency, by email, that he "currently [has] a general power of attorney to talk and handle all her affairs since she is not capable of doing it herself." The Agency asked for the power of attorney, after Complainant's husband requested what he need to do since Complainant "has exhausted all her sick and annual leave hours and needs some help to determine what she needs to fill out in order for her to continue to get paid for administrative leave, etc." On May 4, 2011, Complainant's husband sent an email to the Agency, stating "[Complainant] is not at work because she has been diagnosis [sic] with a mental medical problem due to stress, anxiety and panic attach [sic] caused by the work place."
Further, the record shows that the Agency provided two hours of training on "Equal Opportunity / Prevention of Sexual Harassment" to 120 employees on February 18, 2010. The record also includes a copy of the EEO signs that the Agency posted at "Building 5164, Utah Avenue" to advise employees to contact the Civilian EEO Office within 45 days of the alleged discrimination. S1 averred that there was a poster on the employee bulletin board in Dental Clinic 3, but the location was not specified.
The Agency dismissed Complainant's EEO complaint on the grounds of untimely EEO Counselor contact, finding that Complainant contacted an EEO Counselor on her claims on March 14, 2011, beyond the 45-day time limit set by the Regulations. The Agency deemed the EEO Counselor contact occurred 73 days late and that she failed to provide an explanation.
CONTENTIONS ON APPEAL
Complainant alleges that she timely reported the harassment to S1 as an "EEO officer" and the record includes statements of witnesses who confirmed that Complainant told S1 of her concerns as early as June 8, 2010.
In response, the Agency states that, even if Complainant reported the behavior to the Officer-In-Charge (S1) in the summer of 2010, that does not relieve her of her duty to initiate EEO counseling with the Civilian EEO Office.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. §1614.105(a) requests that an aggrieved person must contact an EEO Counselor within 45 days of the matter alleged to be discriminatory. EEOC regulation 29 C.F.R. §1614.107(a)(2) requires an agency to dismiss a complaint that fails to comply with the applicable time limits.
EEOC Regulations provide that an agency or the Commission shall extend the time limits when the individual shows that she was not notified of the time limits and despite due diligence 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 EEOC Regulation at §1614.604(c) provides that the time limits are subject to waiver, estoppel and equitable tolling.
When a complainant claims that a physical condition prevents her from meeting a particular filing deadline, we have held that in order to justify an untimely filing, a complainant must be so incapacitated by the condition as to render her physically unable to make a timely filing. See Camacho v., Department of Defense (Army & Air Force Exchange Service), EEOC Appeal No. 0120110339 (March 30, 2011). The same is true regarding claims of incapacity related to psychiatric or psychological conditions. See Crear v. United States Postal Service, EEOC Request No. 05920700 (October 29, 1992).
The record contains a letter from an Agency's Therapist indicating that Complainant was suffering from severe debilitating distress. This supports Complainant's contention that, during the applicable period, she was so incapacitated as to prevent her from timely contacting an EEO Counselor. Moreover, the record contains statements from witnesses who confirm that Complainant did make attempts to raise her EEO concerns as early as the summer of 2010, on several occasions and the witnesses had seen Complainant "in emotional distress due to thee encounters with [the alleged harasser]".
The record discloses that the alleged discrimination ceased in December of 2011. For purposes of our analysis, therefore, we will consider the period of alleged discrimination to be from June of 2009 to December 31, 2010. Witnesses confirm that Complainant worked at the Clinic at least until April 4, 2011. The record indicates that the Agency transferred Complainant, which reinforced the fear of retaliation.
The burden is on the Agency to show that Complainant was aware of the discrimination and that her EEO contact was untimely. The Agency did not meet that burden. The record does not show that Complainant was on notice. We note that Complainant alleged discrimination that began as early as June of 2009. The Agency's EEO training did not occur until 2010. In addition, the record indicates that the poster was in the main building; and the record does not show the specific location in the clinic where the posters were placed.
Further, the Agency provided Complainant with her notice of her right to file a complaint which indicates a recognition that the Agency was on notice of her claims.
Finally, EEOC Management Directive 110, Section 2-1, at footnote one, states that "the Commission consistently has held that a complainant may satisfy the criterion of EEO Counselor contact by initiating contact with any 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 Kinan v. Department of Defense, EEOC Request No. 05990249 (May 6, 1999).
Taken together, we find that the record presents persuasive and sufficient evidence warranting an extension of the time limit for initiating EEO contact and / or for finding that Complainant exercised due diligence in making timely EEO contact, given the circumstances of this unusual case. We find that the Agency's dismissal was improper.
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 the ORDER below.
ORDER
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 (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 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 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
September 18, 2012
__________________
Date
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338 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a52547.txt | 01a52547.txt | TXT | text/plain | 20,382 | Edward J. Cadena v. Small Business Administration 01A52547 February 16, 2006 . Edward J. Cadena, Complainant, v. Hector V. Barreto, Administrator, Small Business Administration, Agency. | February 16, 2006 | Appeal Number: 01A52547
Case Facts:
Complainant timely initiated an appeal from a final agency decision (FAD)
concerning 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. The appeal is accepted pursuant
to 29 C.F.R. § 1614.405.
During the relevant time, complainant was employed as a Deputy
District Director, GS-14, at the agency's New Mexico District Office in
Albuquerque, New Mexico.
On December 19, 2000, complainant initiated EEO Counselor contact and
subsequently filed a formal complaint on February 20, 2001. Therein,
complainant claimed that he was discriminated on the bases of race
(Hispanic), national origin (Mexico) and in reprisal for prior EEO
activity when:
(1) he was not selected for the position of District Director, New
Mexico District Office, a position ultimately filled by another District
Director, effective October 22, 2000;
(2) by letter dated November 24, 2000, he was notified that he was
not selected to participate in the Senior Executive Service Candidates
Program;
(3) he was allegedly detailed to a higher graded position for more than
120 days in a 12-month period, yet not compensated at a higher grade
for his time served in the Acting District Director position;
(4) on January 4, 1999, he was issued a reprimand; and
(5) he did not receive a timely bonus at the end of the fiscal year 2000.
On March 29, 2001, the agency issued a document identified as Notice
of Acceptance/Partial Dismissal. The agency accepted claims (1) -
(3) for investigation.
The agency dismissed claim (4) pursuant to 29 C.F.R. § 1614.107(a)(2)
on the grounds of untimely EEO Counselor contact. The agency also
dismissed claim (4) on the alternative grounds that this claim was
not raised with an EEO Counselor and that was not like or related to
a matter for which complainant underwent EEO counseling pursuant to 29
C.F.R. § 1614.107(a)(2).
The agency dismissed claim (5) pursuant to 29 C.F.R. § 1614.107(a)(2),
on the grounds that this claim was not raised with an EEO Counselor and
that was not like or related to a matter for which complainant underwent
EEO counseling. The agency also dismissed claim (5) on the alternative
grounds of mootness pursuant to 29 C.F. R. § 1614.107(a)(5).
Finally, the agency dismissed reprisal as a basis.
At the conclusion of the investigation of claims (1) - (3), complainant
received a copy of the investigative report and requested a hearing before
an EEOC Administrative Judge (AJ). Thereafter, the agency thereafter
filed a Motion to Dismiss or in the alternative, an Agency's Motion
for a Decision Without a Hearing.
On June 10, 2002, the AJ issued a Notice of Intent to Consider Issuance
of a Decision Without a Hearing requesting that complainant respond to
the AJ's consideration of resolving his complaint without a hearing.
The AJ ordered complainant to respond by June 28, 2002, and informed
complainant that his failure to respond would be construed as a withdrawal
of the hearing request. Complainant did not respond to the AJ's Order.
On June 28, 2002, the AJ issued an Order remanding the complaint to the
agency for the issuance of a final agency decision.
In its January 4, 2005 FAD, the agency dismissed claims (1) and (3) 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 occurred on December 19, 2000, which it found to be
beyond the 45-day limitation period. As to the merits of the case,
the agency concluded that complainant did not establish a prima facie
case of race and national origin discrimination. The agency further
found that assuming arguendo complainant established a prima facie case,
management articulated legitimate, nondiscriminatory reasons for its
actions. Further, the agency found that complainant failed to present
any evidence which demonstrated that management's articulated reasons
for its actions were a pretext for discrimination.
Claim (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 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 reflects that the alleged discriminatory event occurred on
October 2, 2000, but that complainant did not contact an EEO Counselor
until December 19, 2000, which is beyond the forty-five day limitation
period. Specifically, the agency stated that October 2, 2000 was the
day that the SO notified complainant of his non-selection. In his formal
complaint, complainant claimed that he learned of his non-selection for
the position of District Director, New Mexico District Office when the
position was ultimately filled by another District Director, effective
October 22, 2000, which is still beyond the forty-five day limitation
period.
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 claim (1) on the grounds of untimely EEO Counselor contact was proper and is AFFIRMED. | Edward J. Cadena v. Small Business Administration
01A52547
February 16, 2006
.
Edward J. Cadena,
Complainant,
v.
Hector V. Barreto,
Administrator,
Small Business Administration,
Agency.
Appeal No. 01A52547
Agency No. 02-01-010
DECISION
Complainant timely initiated an appeal from a final agency decision (FAD)
concerning 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. The appeal is accepted pursuant
to 29 C.F.R. § 1614.405.
During the relevant time, complainant was employed as a Deputy
District Director, GS-14, at the agency's New Mexico District Office in
Albuquerque, New Mexico.
On December 19, 2000, complainant initiated EEO Counselor contact and
subsequently filed a formal complaint on February 20, 2001. Therein,
complainant claimed that he was discriminated on the bases of race
(Hispanic), national origin (Mexico) and in reprisal for prior EEO
activity when:
(1) he was not selected for the position of District Director, New
Mexico District Office, a position ultimately filled by another District
Director, effective October 22, 2000;
(2) by letter dated November 24, 2000, he was notified that he was
not selected to participate in the Senior Executive Service Candidates
Program;
(3) he was allegedly detailed to a higher graded position for more than
120 days in a 12-month period, yet not compensated at a higher grade
for his time served in the Acting District Director position;
(4) on January 4, 1999, he was issued a reprimand; and
(5) he did not receive a timely bonus at the end of the fiscal year 2000.
On March 29, 2001, the agency issued a document identified as Notice
of Acceptance/Partial Dismissal. The agency accepted claims (1) -
(3) for investigation.
The agency dismissed claim (4) pursuant to 29 C.F.R. § 1614.107(a)(2)
on the grounds of untimely EEO Counselor contact. The agency also
dismissed claim (4) on the alternative grounds that this claim was
not raised with an EEO Counselor and that was not like or related to
a matter for which complainant underwent EEO counseling pursuant to 29
C.F.R. § 1614.107(a)(2).
The agency dismissed claim (5) pursuant to 29 C.F.R. § 1614.107(a)(2),
on the grounds that this claim was not raised with an EEO Counselor and
that was not like or related to a matter for which complainant underwent
EEO counseling. The agency also dismissed claim (5) on the alternative
grounds of mootness pursuant to 29 C.F. R. § 1614.107(a)(5).
Finally, the agency dismissed reprisal as a basis.
At the conclusion of the investigation of claims (1) - (3), complainant
received a copy of the investigative report and requested a hearing before
an EEOC Administrative Judge (AJ). Thereafter, the agency thereafter
filed a Motion to Dismiss or in the alternative, an Agency's Motion
for a Decision Without a Hearing.
On June 10, 2002, the AJ issued a Notice of Intent to Consider Issuance
of a Decision Without a Hearing requesting that complainant respond to
the AJ's consideration of resolving his complaint without a hearing.
The AJ ordered complainant to respond by June 28, 2002, and informed
complainant that his failure to respond would be construed as a withdrawal
of the hearing request. Complainant did not respond to the AJ's Order.
On June 28, 2002, the AJ issued an Order remanding the complaint to the
agency for the issuance of a final agency decision.
In its January 4, 2005 FAD, the agency dismissed claims (1) and (3) 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 occurred on December 19, 2000, which it found to be
beyond the 45-day limitation period. As to the merits of the case,
the agency concluded that complainant did not establish a prima facie
case of race and national origin discrimination. The agency further
found that assuming arguendo complainant established a prima facie case,
management articulated legitimate, nondiscriminatory reasons for its
actions. Further, the agency found that complainant failed to present
any evidence which demonstrated that management's articulated reasons
for its actions were a pretext for discrimination.
Claim (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 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 reflects that the alleged discriminatory event occurred on
October 2, 2000, but that complainant did not contact an EEO Counselor
until December 19, 2000, which is beyond the forty-five day limitation
period. Specifically, the agency stated that October 2, 2000 was the
day that the SO notified complainant of his non-selection. In his formal
complaint, complainant claimed that he learned of his non-selection for
the position of District Director, New Mexico District Office when the
position was ultimately filled by another District Director, effective
October 22, 2000, which is still beyond the forty-five day limitation
period.
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 claim (1) on the grounds
of untimely EEO Counselor contact was proper and is AFFIRMED.
Because we affirm the dismissal of claim (1) for the reason stated herein,
we find it unnecessary to address the disposition of this claim on the
merits, as addressed by the agency in its above referenced FAD.
Claims (2) and (3)
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 bears 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).
This established 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. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Commission finds that the agency articulated legitimate,
non-discriminatory reasons for its employment actions. Regarding claim
(2), the record contains an affidavit from the Deputy Director, Training,
Benefits and Systems Division, Office of Human Resources (DD). Therein,
the DD stated that the agency posted an advertisement for three to
six positions in the Senior Executive Service (SES) Candidate Program.
The DD stated that 295 candidates, including complainant, applied for
the SES Program. The DD further stated that two personnel management
specialists reviewed the candidates' application packages for minimum
qualifications and eligibility. The DD stated that the candidates that
met minimum qualifications, including complainant, were forwarded to a
rating panel comprised of three Senior Executives. The DD stated that
the panel "reviewed applications and assigned scores based on how the
applicant's written qualifications met standards within the crediting
plan." The DD stated that the candidates' scores "are arrayed within
grade levels and the different competitive procedures (merit promotion
vs. competitive examining)." The DD stated that because the cut-off
score was 36, complainant was not selected to participate in the SES
Program based on his score of 35 points.
The record contains a copy of the SES Rating and Evaluation forms in
which indicated that complainant received an overall score of 35 points,
one point below the cut-off score of 36 points.
Regarding claim (3), the record reflects that the SO, also an Associate
Administrator, stated that complainant was compensated for his detail at
the higher graded position. The SO further stated that all individuals
serving as Acting District Directors "received a special bonus, prorated
for the number of months that individual served in the Acting position."
The SO stated that in complainant's case, ". . . the amount for 12
months service in 1999 was $3000 and something just less of that in 2000."
The record also contains a copy of the Deputy Associate Administrator
(DAA). Therein, the DAA stated that complainant received an award in
the amount of $3,000 "to compensate him for the detail. The award was
effective 3/13/01." The DAA stated that the SO made a recommendation that
complainant receive an award. The DAA stated that "while the amounts
were identified and discussed with the Regional Administrators, there
was a misunderstanding and some of the Regional Administrators did not
issue the awards from their offices." The DAA stated that on March 6,
2001, the Acting Associate Administrator signed complainant's award forms.
The Commission determines that the agency has articulated legitimate,
non-discriminatory reasons for its action. Moreover, the Commission
determines that complainant has not established that the agency's reasons
were a pretext for discrimination.
Because we affirm the agency's finding of no discrimination concerning
claim (3) for the reason stated herein, we find it unnecessary to address
the agency's alternative disposition of this claim (dismissal on the
grounds of untimely EEO contact).
Accordingly, the agency's decision finding no discrimination regarding
the matter raised in claims (2) and (3) is AFFIRMED.
Reprisal as a basis
Complainant claims that the agency retaliated against him when: he was not
selected for the position of District Director, New Mexico District Office
(claim (1)); he was not selected to participate in the Senior Executive
Service Candidates Program (claim (2)); and he was allegedly detailed
to a higher graded position for more than 120 days in a 12-month period,
yet not compensated at a higher grade for his time served in the Acting
District Director position (claim (3)).
In its partial dismissal dated March 29, 2001, the agency dismissed
the basis of reprisal. Specifically, the agency stated that the record
does not reflect that complainant opposed discriminatory practices or
participated in the EEO process. In an attachment to his complaint,
complainant stated that his non-selection "was a clear inference
of discrimination in the form of a reprisal/retaliation regarding
'non-existent' reprimand.'" Thus, the record does not reflect that
complainant is alleging that he was retaliated against for participating
in the EEO process or for opposing discriminatory employment practices.
Based on these circumstances, we find that the agency properly dismissed
the basis of reprisal.
Claim (4)
Complainant claimed that he was discriminated against on the bases of race
and national origin when on January 4, 1999, he was issued a reprimand.
In its partial dismissal dated March 29, 2001, the agency dismissed claim
(4) pursuant to 29 C.F.R. § 1614.107(a)(2) on the grounds of untimely EEO
Counselor contact. The agency also dismissed claim (4) on the alternative
grounds that this claim was not raised with an EEO Counselor and that
was not like or related to a matter for which complainant underwent EEO
counseling pursuant to 29 C.F.R. § 1614.107(a)(2).
The Commission finds that the alleged discriminatory event occurred on
January 4, 1999, but that complainant did not initiate contact with an EEO
Counselor until December 19, 2000, which was within the forty-five (45)
day limitation period. On appeal, complainant presented no pervasive
arguments or evidence warranting an extension of the time limit for
initiating EEO Counselor contact. Therefore, we find that the agency
properly dismissed claim (4) on the grounds of untimely EEO Counselor
contact.
Because we affirm the agency's dismissal of claim (4) for the reasons
stated herein, we find it unnecessary to address the agency's alternate
grounds for dismissal.
Claim (5)
Complainant claimed that he was discriminated against on the bases of race
and national origin when he did not receive a timely bonus at the end of
the fiscal year 2000. In its partial dismissal dated March 29, 2001,
the agency dismissed claim (5) pursuant to 29 C.F.R. § 1614.107(a)(2),
on the grounds that this claim was not raised with an EEO Counselor and
that was not like or related to a matter for which complainant underwent
EEO counseling. The agency also dismissed claim (5) on the alternative
grounds of mootness pursuant to 29 C.F. R. § 1614.107(a)(5).
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 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 is "like or related" to the original
complaint if the later claim or complaint adds to or clarifies the
original complaint and could 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). We find no indication that complainant raised the
untimely bonus claim with an EEO Counselor prior to the filing of his
formal complaint. Moreover, the untimely bonus claim does not add
to or clarify the issues raised with the EEO Counselor in claim (4).
Therefore, we find that the agency properly dismissed claim (5) pursuant
to 29 C.F.R. § 1614.107(a)(2).
Because we affirm the agency's dismissal of claim (5) for the reasons
stated herein, we find it unnecessary to address the agency's alternate
grounds for dismissal.
Accordingly, the agency's dismissal of reprisal as a basis and claims
(4) and (5) 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
| [
"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)",
"Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990)",
"Peterson v. Department of Health and Human Services... | [
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-... |
339 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01982546.txt | 01982546.txt | TXT | text/plain | 16,812 | May 28, 1999 | Appeal Number: 01982546
Background:
Appellant filed a formal complaint of discrimination on December 22, 1997,
alleging discrimination on the bases of sex (male) and age (DOB 7/14/53)
when: 1) on September 15, 1997, he found out that he was not selected
for the position of Supervisory Environmental Protection Specialist,
GS-0028-13; and, 2) on November 5, 1997, he found out that he was
not selected for the position of Environmental Engineer, GS-819-12.
The agency issued a final agency decision accepting allegation 2 of the
complaint for investigation and dismissing allegation 1 on the grounds
that appellant had failed to contact an EEO Counselor within the 45
day period. This appeal followed.
In his appeal statement, appellant makes several arguments regarding the
timeliness of his complaint and why it should not have been dismissed.
First, he claims that he was unaware of the 45 day time limit for
contacting an EEO Counselor because this is his first complaint and,
although "familiar with the complaint process," he is not an "expert
on such matters." Second, he argues that he could not have filed his
complaint any sooner because it would have jeopardized his chances for
future promotion should the other two GS-13 positions in his branch have
become vacant. Next, he states that he only became "100% convinced"
that he was the victim of discrimination on November 5, 1997 during a
meeting with his superiors. Appellant also states that he discussed the
possibility of filing an EEO complaint with his second line supervisor
in October 1997, but that he was unsure if his non-selection was due
to discrimination and if the EEO process was the proper path to pursue.
Finally, appellant argues that his complaint should properly be regarded
as having only one issue/allegation instead of two because the individual
selected for the GS-0028-13 position would not have accepted the job
offer (and moved to Okinawa) had her husband not also been offered, and
accepted, the GS-819-12 position, and that it cannot neatly be separated
into two parts, as if the two events were not connected.
Appellant first contacted an EEO Counselor regarding his non-selection
for each position on November 6, 1997. The agency dismissed allegation 1
because November 6, 1997 was 51 days beyond the time when appellant first
discovered that he had not been selected for the GS-0028-13 position.
In its statement in opposition to the appeal, the agency argues that
appellant had a reasonable suspicion of discrimination when he found out
on September 15, 1997 that he had not been selected for the GS-0028-13
position, even to the point of discussing his EEO options in October
1997 with his second line supervisor. The agency also argues that the
reasons appellant gave on appeal as to why he missed the 45 day time
limit are insufficient to toll the time limit.
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 Commission has adopted
a "reasonable suspicion" standard (as opposed to a "supportive facts"
standard) for determining whether contact with an EEO Counselor is timely.
Ball v. U.S. Postal Service, EEOC Request No. 05880247 (July 6, 1988).
Under this standard, the regulatory limitations period "is not triggered
until complainant reasonably suspects discrimination, but before all the
facts that would support a charge of discrimination have become apparent."
Bracken v. U.S. Postal Service, EEOC Request No. 05900065 (March 29,
1990).
Appellant has stated that he did not go to an EEO Counselor until he was
"100% convinced" that he was the victim of discrimination regarding his
non-selection for the GS-0028-13 position, and that as early as sometime
in October 1997 he was aware of the possibility that discrimination could
be the cause of his non-selection. The Commission has consistently held
that the time period is triggered as soon as a complainant suspects
discrimination, and waiting until one has proof of discrimination
before initiating a complaint can result in untimely contact with an
EEO Counselor. Peets v. U.S. Postal Service, EEOC Request No. 05950725
(March 28, 1996); Bracken. Therefore, the Commission finds that
appellant had the requisite reasonable suspicion that he was the victim
of discrimination after he learned of his non-selection on September
15, 1997.
Appellant also claimed that he delayed contacting an EEO Counselor because
he was afraid of reprisal for future job selections. The agency points
out that the other two GS-13 positions which appellant claims to have
feared not being considered for if he filed a complaint were not vacant
at any time during the time period in question, nor could appellant
have expected them to be, so he had no reasonable expectation of being
retaliated against in this manner. The Commission has repeatedly held that
the fear of reprisal, without more, is an insufficient justification
for extending the time limitation for contacting an EEO Counselor.
Croft v. Department of the Army, EEOC Request No. 05970669 (August 1,
1997), Parker v. Department of Veterans Affairs, EEOC Request No. 05940436
(February 9, 1995).
Appellant, however, has claimed on appeal that he was unaware of the
45 day time limit to contact an EEO Counselor. The agency notes in
its response that appellant has been a federal employee for a number
of years, that he has received training on the EEO process and that
because he admits to being "somewhat familiar" with the EEO process,
he was required to act in a diligent manner to protect his rights.
It argues that a "reasonably prudent person in appellant's situation"
would have made a "diligent effort to check into the complaint process."
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. USPS,
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, supra, (citing Pride v. USPS, EEOC Request
No. 05930134 (August 19, 1993)).
In this case, the agency has failed to produce any evidence showing
that appellant had actual or constructive notice of the time limit for
contacting an EEO Counselor. It does not provide any evidence in the
record that EEO posters were on display in appellant's work facility,
either in the form of a copy of any EEO posters or an affidavit describing
the location of the posters during the relevant time period. Nor does
it provide persuasive evidence that appellant was otherwise notified
of the procedures for filing an EEO complaint at any time during his
employment with the agency. Therefore, the Commission cannot find that
the appellant had actual or constructive notice of the time limits for
contacting an EEO Counselor. The Commission shall remand allegation 1
to the agency so that it may conduct a supplemental investigation to
determine if appellant had actual or constructive notice of the time
limit for contacting the EEO Counselor. | Rondal G. Ballard v. Department of the Navy
01982546
May 28, 1999
Rondal G. Ballard, )
Appellant, )
) Appeal No. 01982546
v. ) Agency No. 98-67400-003
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
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 the Age Discrimination in Employment Act of
1967, as amended, 29 U.S.C. §621 et seq. The final agency decision was
dated January 13, 1998. The appeal was postmarked on February 11, 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 one
allegation of appellant's complaint for untimely contact with an EEO
Counselor.
BACKGROUND
Appellant filed a formal complaint of discrimination on December 22, 1997,
alleging discrimination on the bases of sex (male) and age (DOB 7/14/53)
when: 1) on September 15, 1997, he found out that he was not selected
for the position of Supervisory Environmental Protection Specialist,
GS-0028-13; and, 2) on November 5, 1997, he found out that he was
not selected for the position of Environmental Engineer, GS-819-12.
The agency issued a final agency decision accepting allegation 2 of the
complaint for investigation and dismissing allegation 1 on the grounds
that appellant had failed to contact an EEO Counselor within the 45
day period. This appeal followed.
In his appeal statement, appellant makes several arguments regarding the
timeliness of his complaint and why it should not have been dismissed.
First, he claims that he was unaware of the 45 day time limit for
contacting an EEO Counselor because this is his first complaint and,
although "familiar with the complaint process," he is not an "expert
on such matters." Second, he argues that he could not have filed his
complaint any sooner because it would have jeopardized his chances for
future promotion should the other two GS-13 positions in his branch have
become vacant. Next, he states that he only became "100% convinced"
that he was the victim of discrimination on November 5, 1997 during a
meeting with his superiors. Appellant also states that he discussed the
possibility of filing an EEO complaint with his second line supervisor
in October 1997, but that he was unsure if his non-selection was due
to discrimination and if the EEO process was the proper path to pursue.
Finally, appellant argues that his complaint should properly be regarded
as having only one issue/allegation instead of two because the individual
selected for the GS-0028-13 position would not have accepted the job
offer (and moved to Okinawa) had her husband not also been offered, and
accepted, the GS-819-12 position, and that it cannot neatly be separated
into two parts, as if the two events were not connected.
Appellant first contacted an EEO Counselor regarding his non-selection
for each position on November 6, 1997. The agency dismissed allegation 1
because November 6, 1997 was 51 days beyond the time when appellant first
discovered that he had not been selected for the GS-0028-13 position.
In its statement in opposition to the appeal, the agency argues that
appellant had a reasonable suspicion of discrimination when he found out
on September 15, 1997 that he had not been selected for the GS-0028-13
position, even to the point of discussing his EEO options in October
1997 with his second line supervisor. The agency also argues that the
reasons appellant gave on appeal as to why he missed the 45 day time
limit are insufficient to toll the time limit.
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 Commission has adopted
a "reasonable suspicion" standard (as opposed to a "supportive facts"
standard) for determining whether contact with an EEO Counselor is timely.
Ball v. U.S. Postal Service, EEOC Request No. 05880247 (July 6, 1988).
Under this standard, the regulatory limitations period "is not triggered
until complainant reasonably suspects discrimination, but before all the
facts that would support a charge of discrimination have become apparent."
Bracken v. U.S. Postal Service, EEOC Request No. 05900065 (March 29,
1990).
Appellant has stated that he did not go to an EEO Counselor until he was
"100% convinced" that he was the victim of discrimination regarding his
non-selection for the GS-0028-13 position, and that as early as sometime
in October 1997 he was aware of the possibility that discrimination could
be the cause of his non-selection. The Commission has consistently held
that the time period is triggered as soon as a complainant suspects
discrimination, and waiting until one has proof of discrimination
before initiating a complaint can result in untimely contact with an
EEO Counselor. Peets v. U.S. Postal Service, EEOC Request No. 05950725
(March 28, 1996); Bracken. Therefore, the Commission finds that
appellant had the requisite reasonable suspicion that he was the victim
of discrimination after he learned of his non-selection on September
15, 1997.
Appellant also claimed that he delayed contacting an EEO Counselor because
he was afraid of reprisal for future job selections. The agency points
out that the other two GS-13 positions which appellant claims to have
feared not being considered for if he filed a complaint were not vacant
at any time during the time period in question, nor could appellant
have expected them to be, so he had no reasonable expectation of being
retaliated against in this manner. The Commission has repeatedly held that
the fear of reprisal, without more, is an insufficient justification
for extending the time limitation for contacting an EEO Counselor.
Croft v. Department of the Army, EEOC Request No. 05970669 (August 1,
1997), Parker v. Department of Veterans Affairs, EEOC Request No. 05940436
(February 9, 1995).
Appellant, however, has claimed on appeal that he was unaware of the
45 day time limit to contact an EEO Counselor. The agency notes in
its response that appellant has been a federal employee for a number
of years, that he has received training on the EEO process and that
because he admits to being "somewhat familiar" with the EEO process,
he was required to act in a diligent manner to protect his rights.
It argues that a "reasonably prudent person in appellant's situation"
would have made a "diligent effort to check into the complaint process."
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. USPS,
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, supra, (citing Pride v. USPS, EEOC Request
No. 05930134 (August 19, 1993)).
In this case, the agency has failed to produce any evidence showing
that appellant had actual or constructive notice of the time limit for
contacting an EEO Counselor. It does not provide any evidence in the
record that EEO posters were on display in appellant's work facility,
either in the form of a copy of any EEO posters or an affidavit describing
the location of the posters during the relevant time period. Nor does
it provide persuasive evidence that appellant was otherwise notified
of the procedures for filing an EEO complaint at any time during his
employment with the agency. Therefore, the Commission cannot find that
the appellant had actual or constructive notice of the time limits for
contacting an EEO Counselor. The Commission shall remand allegation 1
to the agency so that it may conduct a supplemental investigation to
determine if appellant had actual or constructive notice of the time
limit for contacting the EEO Counselor.
Accordingly, the decision of the agency is VACATED, and is REMANDED to
the agency to conduct a supplemental investigation in accordance with
this decision and the applicable regulations.
ORDER
The agency shall investigate the issue of whether appellant had actual or
constructive knowledge of the time limit for contacting an EEO Counselor.
The agency shall supplement the record with copies of the EEO posters,
or affidavits describing the posters if the posters are unavailable,
and any other evidence showing that appellant was informed, or should
have known, of the time limits for contacting an EEO Counselor.
The agency shall redetermine whether appellant timely contacted an
EEO Counselor. Within 60 days of the date this decision becomes final,
the agency shall either issue a letter to appellant accepting allegation
1 for investigation, or issue a new decision dismissing allegation 1,
with all relevant information concerning appeal rights. A copy of the
letter accepting allegation 1 or new decision dismissing allegation 1
shall 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(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:
May 28, 1999
______________ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations | [
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340 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01992356_r.txt | 01992356_r.txt | TXT | text/plain | 18,602 | December
30, 1998 | Appeal Number: 01992356
Background:
Appellant, a Waitress/NA-7420-03, at the Morale, Welfare, and Recreation
Activity's Desert View Conference Center, initiated contact with an EEO
Counselor on July 7, 1998. On August 4, 1998, appellant filed a formal
EEO complaint wherein she alleged that she was subjected to discriminatory
harassment in reprisal for her previous EEO activity when:
On July 1, 1998, her supervisor disapproved her leave request.
On November 8, 1997, the Food and Hospitality Branch Head verbally
counseled appellant for telling a patron that the Desert View Conference
Center was going downhill.
On December 21, 1997, appellant's manager required her to submit a
written statement explaining why she missed a meeting.
On March 13, 1998, appellant's supervisor verbally counseled her for
insubordination toward another employee.
On April 3, 1998, appellant's supervisor verbally counseled her for
being rude to customers.
On May 4, 1998, appellant's supervisor verbally counseled her for being
insubordinate toward the lead waitress.
On July 17, 1998, appellant's manager told appellant not to prepare a
reservation table for a party and refused to speak to appellant about it.
In its final decision, the agency accepted allegation 1 and dismissed
allegations 2 - 7 of appellant's complaint on the grounds of failure
to state a claim. The agency determined that these incidents were
unaccompanied by concrete adverse actions, and that appellant was not
rendered aggrieved with regard to the terms, conditions, or privileges of
her employment. The agency further determined that the alleged actions
could not reasonably be considered likely to deter protected activity by
appellant or other individuals. Allegations 2 - 6 were dismissed on the
grounds that appellant failed to contact an EEO Counselor in a timely
manner. The agency determined that appellant's EEO contact of July 7,
1998, was more than 45 days after the occurrence of the incidents set
forth in allegations 2 - 6. The agency concluded that these allegations
do not meet the criteria of a continuing violation. According to the
agency, the accepted allegation relates to a denial of leave and is
unrelated to the untimely counselings of appellant. The agency noted
that two of the untimely allegations involve actions taken by an agency
official other than the official involved in the accepted allegation.
On appeal, appellant argues that she believed that she needed to go
through her chain of command before she could contact an EEO Counselor.
In response, the agency asserts that appellant had actual notice of
the 45-day limitation period for contacting an EEO Counselor based on
her attendance at EEO training. The agency argues that appellant also
had constructive notice of the 45-day limitation period. In support
of this position, the agency submits an affidavit from the Equal
Employment Manager at the Morale, Welfare, and Recreation Activity.
In the affidavit, this official states that an EEO poster, containing
the 45-day limitation period and the procedure for initiating an EEO
complaint, was affixed to the bulletin board in the Administrative
Office of the Desert View Conference Center, and that a similar poster
containing the same substantive information has continuously been affixed
to that bulletin board since at least 1982. The agency submitted a copy
of the first EEO poster referenced by the EEO Manager. According to
the agency, appellant's belief that she needed to go through her chain
of command before contacting an EEO Counselor is not credible based on
her training and experience with the EEO process. With regard to the
applicability of the continuing violation theory, the agency asserts that
the untimely allegations are not related to the accepted allegation by
a common nexus or theme. The agency maintains that the denial of leave
is distinct from informal verbal counselings and the requirement to
submit a written statement. Further, the agency asserts that although
the verbal counselings may have been recurring, they did not continue
into the 45-day limitation period, and the accepted allegation was not
of a recurring nature. The agency notes that allegations 2 and 3 allege
discriminatory actions by persons other than the person who allegedly
disapproved appellant's leave request.
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.
The Commission has 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 McGovern v. U.S. Postal Service,
EEOC Request No. 05901150 (December 28, 1990); Starr v. U.S. Postal
Service, EEOC Appeal No. 01890412 (April 6, 1989).
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, 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, appellant 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 appellant.
Scott v. Claytor, 469 F. Supp. 22, 26 (D.D.C. 1978).
The record reveals that appellant initiated contact with an EEO Counselor
on July 7, 1998. The incidents at issue in allegations 2 - 6 occurred
during the period of November 8, 1997 - May 4, 1998. Each of these
incidents occurred more than 45 days before appellant contacted an EEO
Counselor. To the extent appellant claims that she believed she needed
to go through her chain of command before contacting an EEO Counselor,
we note 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). The agency also established that appellant had
constructive notice of the 45-day limitation period, as well as the
procedure for initiating an EEO complaint. In response to the instant
appeal, the agency submitted an affidavit from the Equal Employment
Opportunity Manager for the Morale, Welfare, and Recreation Activity.
This official stated that an EEO poster listing the 45-day limitation
period and the appropriate EEO procedures was affixed to the bulletin
board in the Administrative Office of the Desert View Conference Center,
and that a similar poster containing the same substantive information has
continuously been on that bulletin board since at least 1982. The agency
submitted a copy of the first poster referenced by the EEO Manager.
With regard to the applicability of the continuing violation theory,
we find that the accepted allegation, which involves the denial of
appellant's request for leave, is not interrelated with the dismissed
allegations by a common nexus or theme. Allegations 2 - 6 concern four
occasions in which appellant was verbally counseled and one incident
where appellant was required to submit a written statement to explain her
absence from a meeting. Appellant has not established that allegations
2 - 6 are sufficiently related to the denial of her leave request.
We find that appellant has not submitted adequate justification for an
extension of the 45-day limitation period.
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. ISSUES PRESENTED 1. The first issue presented is whether the agency properly dismissed allegations 2 - 6 of appellant's complaint on the grounds that appellant failed to initiate contact with an EEO Counselor in a timely manner. 2. The second issue presented is whether the agency properly dismissed allegations 2 - 7 of appellant's EEO complaint on the grounds of failure to state a claim. BACKGROUND Appellant, a Waitress/NA-7420-03, at the Morale, Welfare, and Recreation Activity's Desert View Conference Center, initiated contact with an EEO Counselor on July 7, 1998. On August 4, 1998, appellant filed a formal EEO complaint wherein she alleged that she was subjected to discriminatory harassment in reprisal for her previous EEO activity when: On July 1, 1998, her supervisor disapproved her leave request. On November 8, 1997, the Food and Hospitality Branch Head verbally counseled appellant for telling a patron that the Desert View Conference Center was going downhill. On December 21, 1997, appellant's manager required her to submit a written statement explaining why she missed a meeting. On March 13, 1998, appellant's supervisor verbally counseled her for insubordination toward another employee. On April 3, 1998, appellant's supervisor verbally counseled her for being rude to customers. On May 4, 1998, appellant's supervisor verbally counseled her for being insubordinate toward the lead waitress. On July 17, 1998, appellant's manager told appellant not to prepare a reservation table for a party and refused to speak to appellant about it. In its final decision, the agency accepted allegation 1 and dismissed allegations 2 - 7 of appellant's complaint on the grounds of failure to state a claim. The agency determined that these incidents were unaccompanied by concrete adverse actions, and that appellant was not rendered aggrieved with regard to the terms, conditions, or privileges of her employment. The agency further determined that the alleged actions could not reasonably be considered likely to deter protected activity by appellant or other individuals. Allegations 2 - 6 were dismissed on the grounds that appellant failed to contact an EEO Counselor in a timely manner. The agency determined that appellant's EEO contact of July 7, 1998, was more than 45 days after the occurrence of the incidents set forth in allegations 2 - 6. The agency concluded that these allegations do not meet the criteria of a continuing violation. According to the agency, the accepted allegation relates to a denial of leave and is unrelated to the untimely counselings of appellant. The agency noted that two of the untimely allegations involve actions taken by an agency official other than the official involved in the accepted allegation. On appeal, appellant argues that she believed that she needed to go through her chain of command before she could contact an EEO Counselor. In response, the agency asserts that appellant had actual notice of the 45-day limitation period for contacting an EEO Counselor based on her attendance at EEO training. The agency argues that appellant also had constructive notice of the 45-day limitation period. In support of this position, the agency submits an affidavit from the Equal Employment Manager at the Morale, Welfare, and Recreation Activity. In the affidavit, this official states that an EEO poster, containing the 45-day limitation period and the procedure for initiating an EEO complaint, was affixed to the bulletin board in the Administrative Office of the Desert View Conference Center, and that a similar poster containing the same substantive information has continuously been affixed to that bulletin board since at least 1982. The agency submitted a copy of the first EEO poster referenced by the EEO Manager. According to the agency, appellant's belief that she needed to go through her chain of command before contacting an EEO Counselor is not credible based on her training and experience with the EEO process. With regard to the applicability of the continuing violation theory, the agency asserts that the untimely allegations are not related to the accepted allegation by a common nexus or theme. The agency maintains that the denial of leave is distinct from informal verbal counselings and the requirement to submit a written statement. Further, the agency asserts that although the verbal counselings may have been recurring, they did not continue into the 45-day limitation period, and the accepted allegation was not of a recurring nature. The agency notes that allegations 2 and 3 allege discriminatory actions by persons other than the person who allegedly disapproved appellant's leave request. 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. The Commission has 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 McGovern v. U.S. Postal Service, EEOC Request No. 05901150 (December 28, 1990); Starr v. U.S. Postal Service, EEOC Appeal No. 01890412 (April 6, 1989). 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, 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, appellant 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 appellant. Scott v. Claytor, 469 F. Supp. 22, 26 (D.D.C. 1978). The record reveals that appellant initiated contact with an EEO Counselor on July 7, 1998. The incidents at issue in allegations 2 - 6 occurred during the period of November 8, 1997 - May 4, 1998. Each of these incidents occurred more than 45 days before appellant contacted an EEO Counselor. To the extent appellant claims that she believed she needed to go through her chain of command before contacting an EEO Counselor, we note 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). The agency also established that appellant had constructive notice of the 45-day limitation period, as well as the procedure for initiating an EEO complaint. In response to the instant appeal, the agency submitted an affidavit from the Equal Employment Opportunity Manager for the Morale, Welfare, and Recreation Activity. This official stated that an EEO poster listing the 45-day limitation period and the appropriate EEO procedures was affixed to the bulletin board in the Administrative Office of the Desert View Conference Center, and that a similar poster containing the same substantive information has continuously been on that bulletin board since at least 1982. The agency submitted a copy of the first poster referenced by the EEO Manager. With regard to the applicability of the continuing violation theory, we find that the accepted allegation, which involves the denial of appellant's request for leave, is not interrelated with the dismissed allegations by a common nexus or theme. Allegations 2 - 6 concern four occasions in which appellant was verbally counseled and one incident where appellant was required to submit a written statement to explain her absence from a meeting. Appellant has not established that allegations 2 - 6 are sufficiently related to the denial of her leave request. We find that appellant has not submitted adequate justification for an extension of the 45-day limitation period. Accordingly, the agency's dismissal of allegations 2 - 6 on the grounds of untimely EEO contact was proper and is AFFIRMED. | Virgilia D. Wright, )
Appellant, )
)
v. ) Appeal No. 01992356
) Agency No. 98-67399-N01
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her 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
30, 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.
ISSUES PRESENTED
1. The first issue presented is whether the agency properly dismissed
allegations 2 - 6 of appellant's complaint on the grounds that appellant
failed to initiate contact with an EEO Counselor in a timely manner.
2. The second issue presented is whether the agency properly dismissed
allegations 2 - 7 of appellant's EEO complaint on the grounds of failure
to state a claim.
BACKGROUND
Appellant, a Waitress/NA-7420-03, at the Morale, Welfare, and Recreation
Activity's Desert View Conference Center, initiated contact with an EEO
Counselor on July 7, 1998. On August 4, 1998, appellant filed a formal
EEO complaint wherein she alleged that she was subjected to discriminatory
harassment in reprisal for her previous EEO activity when:
On July 1, 1998, her supervisor disapproved her leave request.
On November 8, 1997, the Food and Hospitality Branch Head verbally
counseled appellant for telling a patron that the Desert View Conference
Center was going downhill.
On December 21, 1997, appellant's manager required her to submit a
written statement explaining why she missed a meeting.
On March 13, 1998, appellant's supervisor verbally counseled her for
insubordination toward another employee.
On April 3, 1998, appellant's supervisor verbally counseled her for
being rude to customers.
On May 4, 1998, appellant's supervisor verbally counseled her for being
insubordinate toward the lead waitress.
On July 17, 1998, appellant's manager told appellant not to prepare a
reservation table for a party and refused to speak to appellant about it.
In its final decision, the agency accepted allegation 1 and dismissed
allegations 2 - 7 of appellant's complaint on the grounds of failure
to state a claim. The agency determined that these incidents were
unaccompanied by concrete adverse actions, and that appellant was not
rendered aggrieved with regard to the terms, conditions, or privileges of
her employment. The agency further determined that the alleged actions
could not reasonably be considered likely to deter protected activity by
appellant or other individuals. Allegations 2 - 6 were dismissed on the
grounds that appellant failed to contact an EEO Counselor in a timely
manner. The agency determined that appellant's EEO contact of July 7,
1998, was more than 45 days after the occurrence of the incidents set
forth in allegations 2 - 6. The agency concluded that these allegations
do not meet the criteria of a continuing violation. According to the
agency, the accepted allegation relates to a denial of leave and is
unrelated to the untimely counselings of appellant. The agency noted
that two of the untimely allegations involve actions taken by an agency
official other than the official involved in the accepted allegation.
On appeal, appellant argues that she believed that she needed to go
through her chain of command before she could contact an EEO Counselor.
In response, the agency asserts that appellant had actual notice of
the 45-day limitation period for contacting an EEO Counselor based on
her attendance at EEO training. The agency argues that appellant also
had constructive notice of the 45-day limitation period. In support
of this position, the agency submits an affidavit from the Equal
Employment Manager at the Morale, Welfare, and Recreation Activity.
In the affidavit, this official states that an EEO poster, containing
the 45-day limitation period and the procedure for initiating an EEO
complaint, was affixed to the bulletin board in the Administrative
Office of the Desert View Conference Center, and that a similar poster
containing the same substantive information has continuously been affixed
to that bulletin board since at least 1982. The agency submitted a copy
of the first EEO poster referenced by the EEO Manager. According to
the agency, appellant's belief that she needed to go through her chain
of command before contacting an EEO Counselor is not credible based on
her training and experience with the EEO process. With regard to the
applicability of the continuing violation theory, the agency asserts that
the untimely allegations are not related to the accepted allegation by
a common nexus or theme. The agency maintains that the denial of leave
is distinct from informal verbal counselings and the requirement to
submit a written statement. Further, the agency asserts that although
the verbal counselings may have been recurring, they did not continue
into the 45-day limitation period, and the accepted allegation was not
of a recurring nature. The agency notes that allegations 2 and 3 allege
discriminatory actions by persons other than the person who allegedly
disapproved appellant's leave request.
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.
The Commission has 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 McGovern v. U.S. Postal Service,
EEOC Request No. 05901150 (December 28, 1990); Starr v. U.S. Postal
Service, EEOC Appeal No. 01890412 (April 6, 1989).
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, 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, appellant 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 appellant.
Scott v. Claytor, 469 F. Supp. 22, 26 (D.D.C. 1978).
The record reveals that appellant initiated contact with an EEO Counselor
on July 7, 1998. The incidents at issue in allegations 2 - 6 occurred
during the period of November 8, 1997 - May 4, 1998. Each of these
incidents occurred more than 45 days before appellant contacted an EEO
Counselor. To the extent appellant claims that she believed she needed
to go through her chain of command before contacting an EEO Counselor,
we note 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). The agency also established that appellant had
constructive notice of the 45-day limitation period, as well as the
procedure for initiating an EEO complaint. In response to the instant
appeal, the agency submitted an affidavit from the Equal Employment
Opportunity Manager for the Morale, Welfare, and Recreation Activity.
This official stated that an EEO poster listing the 45-day limitation
period and the appropriate EEO procedures was affixed to the bulletin
board in the Administrative Office of the Desert View Conference Center,
and that a similar poster containing the same substantive information has
continuously been on that bulletin board since at least 1982. The agency
submitted a copy of the first poster referenced by the EEO Manager.
With regard to the applicability of the continuing violation theory,
we find that the accepted allegation, which involves the denial of
appellant's request for leave, is not interrelated with the dismissed
allegations by a common nexus or theme. Allegations 2 - 6 concern four
occasions in which appellant was verbally counseled and one incident
where appellant was required to submit a written statement to explain her
absence from a meeting. Appellant has not established that allegations
2 - 6 are sufficiently related to the denial of her leave request.
We find that appellant has not submitted adequate justification for an
extension of the 45-day limitation period. Accordingly, the agency's
dismissal of allegations 2 - 6 on the grounds of untimely EEO contact
was proper and is AFFIRMED.<1>
EEOC Regulation 29 C.F.R. §1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. §1614.103.
For employees and applicants for employment, EEOC Regulation 29
C.F.R. §1614.103 provides that individual and class complaints of
employment discrimination prohibited by Title VII (discrimination on
the bases of race, color, religion, sex and national origin), the ADEA
(discrimination on the basis of age when the aggrieved individual is
at least 40 years of age) and the Rehabilitation Act (discrimination on
the basis of disability) shall be processed in accordance with Part 29
C.F.R. §1614 of the EEOC Regulations.
The only proper inquiry, therefore, in determining whether an allegation
is within the purview of the EEO process is whether the complainant is an
aggrieved employee and whether s/he has alleged employment discrimination
covered by the EEO statutes. 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 (Apr. 21, 1994).
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).
With regard to allegation 7, we find that appellant has not established
that she was harmed with regard to a term, condition, or privilege
of her employment when her manager would not speak to her about
the instruction for appellant not to prepare a reservation table for
a party. Appellant contends that she was subjected to harassment when
she received the verbal counselings; she was required to submit a written
explanation as to why she was absent from a meeting; her leave request
was denied; and her manager would not speak to her about instructing her
not to prepare a reservation table for a party. In light of the fact
that the only allegations that remain to be considered in a harassment
analysis are the accepted allegation concerning the denial of leave and
appellant not being spoken to by her manager, we find that appellant has
not stated a cognizable claim of harassment under the EEOC Regulations.
These allegations lack sufficient pervasiveness or severity to rise to
the level of harassment. Accordingly, the agency's decision to dismiss
allegation 7 for failure to state a claim 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 1In light of our affirmance of the
agency's dismissal of allegations 2 - 6 on these grounds, we need
not address the agency's alternative grounds for dismissal.
| [
"EEO Counselor. See McGovern v. U.S. Postal Service, EEOC Request No. 05901150 (December 28, 1990)",
"Starr v. U.S. Postal Service, EEOC Appeal No. 01890412 (April 6, 1989)",
"Vissing v. Nuclear Regulatory Commission, EEOC Request No. 05890308 (June 13, 1989)",
"Verkennes v. Department of Defense, EEOC Reques... | [
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341 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01992356.txt | 01992356.txt | TXT | text/plain | 18,779 | October 21, 1999 | Appeal Number: 01992356
Background:
Appellant, a Waitress/NA-7420-03, at the Morale, Welfare, and Recreation
Activity's Desert View Conference Center, initiated contact with an EEO
Counselor on July 7, 1998. On August 4, 1998, appellant filed a formal
EEO complaint wherein she alleged that she was subjected to discriminatory
harassment in reprisal for her previous EEO activity when:
On July 1, 1998, her supervisor disapproved her leave request.
On November 8, 1997, the Food and Hospitality Branch Head verbally
counseled appellant for telling a patron that the Desert View Conference
Center was going downhill.
On December 21, 1997, appellant's manager required her to submit a
written statement explaining why she missed a meeting.
On March 13, 1998, appellant's supervisor verbally counseled her for
insubordination toward another employee.
On April 3, 1998, appellant's supervisor verbally counseled her for
being rude to customers.
On May 4, 1998, appellant's supervisor verbally counseled her for being
insubordinate toward the lead waitress.
On July 17, 1998, appellant's manager told appellant not to prepare a
reservation table for a party and refused to speak to appellant about it.
In its final decision, the agency accepted allegation 1 and dismissed
allegations 2 - 7 of appellant's complaint on the grounds of failure
to state a claim. The agency determined that these incidents were
unaccompanied by concrete adverse actions, and that appellant was not
rendered aggrieved with regard to the terms, conditions, or privileges of
her employment. The agency further determined that the alleged actions
could not reasonably be considered likely to deter protected activity by
appellant or other individuals. Allegations 2 - 6 were dismissed on the
grounds that appellant failed to contact an EEO Counselor in a timely
manner. The agency determined that appellant's EEO contact of July 7,
1998, was more than 45 days after the occurrence of the incidents set
forth in allegations 2 - 6. The agency concluded that these allegations
do not meet the criteria of a continuing violation. According to the
agency, the accepted allegation relates to a denial of leave and is
unrelated to the untimely counselings of appellant. The agency noted
that two of the untimely allegations involve actions taken by an agency
official other than the official involved in the accepted allegation.
On appeal, appellant argues that she believed that she needed to go
through her chain of command before she could contact an EEO Counselor.
In response, the agency asserts that appellant had actual notice of
the 45-day limitation period for contacting an EEO Counselor based on
her attendance at EEO training. The agency argues that appellant also
had constructive notice of the 45-day limitation period. In support
of this position, the agency submits an affidavit from the Equal
Employment Manager at the Morale, Welfare, and Recreation Activity.
In the affidavit, this official states that an EEO poster, containing
the 45-day limitation period and the procedure for initiating an EEO
complaint, was affixed to the bulletin board in the Administrative
Office of the Desert View Conference Center, and that a similar poster
containing the same substantive information has continuously been affixed
to that bulletin board since at least 1982. The agency submitted a copy
of the first EEO poster referenced by the EEO Manager. According to
the agency, appellant's belief that she needed to go through her chain
of command before contacting an EEO Counselor is not credible based on
her training and experience with the EEO process. With regard to the
applicability of the continuing violation theory, the agency asserts that
the untimely allegations are not related to the accepted allegation by
a common nexus or theme. The agency maintains that the denial of leave
is distinct from informal verbal counselings and the requirement to
submit a written statement. Further, the agency asserts that although
the verbal counselings may have been recurring, they did not continue
into the 45-day limitation period, and the accepted allegation was not
of a recurring nature. The agency notes that allegations 2 and 3 allege
discriminatory actions by persons other than the person who allegedly
disapproved appellant's leave request.
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.
The Commission has 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 McGovern v. U.S. Postal Service,
EEOC Request No. 05901150 (December 28, 1990); Starr v. U.S. Postal
Service, EEOC Appeal No. 01890412 (April 6, 1989).
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, 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, appellant 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 appellant.
Scott v. Claytor, 469 F. Supp. 22, 26 (D.D.C. 1978).
The record reveals that appellant initiated contact with an EEO Counselor
on July 7, 1998. The incidents at issue in allegations 2 - 6 occurred
during the period of November 8, 1997 - May 4, 1998. Each of these
incidents occurred more than 45 days before appellant contacted an EEO
Counselor. To the extent appellant claims that she believed she needed
to go through her chain of command before contacting an EEO Counselor,
we note 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). The agency also established that appellant had
constructive notice of the 45-day limitation period, as well as the
procedure for initiating an EEO complaint. In response to the instant
appeal, the agency submitted an affidavit from the Equal Employment
Opportunity Manager for the Morale, Welfare, and Recreation Activity.
This official stated that an EEO poster listing the 45-day limitation
period and the appropriate EEO procedures was affixed to the bulletin
board in the Administrative Office of the Desert View Conference Center,
and that a similar poster containing the same substantive information has
continuously been on that bulletin board since at least 1982. The agency
submitted a copy of the first poster referenced by the EEO Manager.
With regard to the applicability of the continuing violation theory,
we find that the accepted allegation, which involves the denial of
appellant's request for leave, is not interrelated with the dismissed
allegations by a common nexus or theme. Allegations 2 - 6 concern four
occasions in which appellant was verbally counseled and one incident
where appellant was required to submit a written statement to explain her
absence from a meeting. Appellant has not established that allegations
2 - 6 are sufficiently related to the denial of her leave request.
We find that appellant has not submitted adequate justification for an
extension of the 45-day limitation period.
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. ISSUES PRESENTED 1. The first issue presented is whether the agency properly dismissed allegations 2 - 6 of appellant's complaint on the grounds that appellant failed to initiate contact with an EEO Counselor in a timely manner. 2. The second issue presented is whether the agency properly dismissed allegations 2 - 7 of appellant's EEO complaint on the grounds of failure to state a claim. BACKGROUND Appellant, a Waitress/NA-7420-03, at the Morale, Welfare, and Recreation Activity's Desert View Conference Center, initiated contact with an EEO Counselor on July 7, 1998. On August 4, 1998, appellant filed a formal EEO complaint wherein she alleged that she was subjected to discriminatory harassment in reprisal for her previous EEO activity when: On July 1, 1998, her supervisor disapproved her leave request. On November 8, 1997, the Food and Hospitality Branch Head verbally counseled appellant for telling a patron that the Desert View Conference Center was going downhill. On December 21, 1997, appellant's manager required her to submit a written statement explaining why she missed a meeting. On March 13, 1998, appellant's supervisor verbally counseled her for insubordination toward another employee. On April 3, 1998, appellant's supervisor verbally counseled her for being rude to customers. On May 4, 1998, appellant's supervisor verbally counseled her for being insubordinate toward the lead waitress. On July 17, 1998, appellant's manager told appellant not to prepare a reservation table for a party and refused to speak to appellant about it. In its final decision, the agency accepted allegation 1 and dismissed allegations 2 - 7 of appellant's complaint on the grounds of failure to state a claim. The agency determined that these incidents were unaccompanied by concrete adverse actions, and that appellant was not rendered aggrieved with regard to the terms, conditions, or privileges of her employment. The agency further determined that the alleged actions could not reasonably be considered likely to deter protected activity by appellant or other individuals. Allegations 2 - 6 were dismissed on the grounds that appellant failed to contact an EEO Counselor in a timely manner. The agency determined that appellant's EEO contact of July 7, 1998, was more than 45 days after the occurrence of the incidents set forth in allegations 2 - 6. The agency concluded that these allegations do not meet the criteria of a continuing violation. According to the agency, the accepted allegation relates to a denial of leave and is unrelated to the untimely counselings of appellant. The agency noted that two of the untimely allegations involve actions taken by an agency official other than the official involved in the accepted allegation. On appeal, appellant argues that she believed that she needed to go through her chain of command before she could contact an EEO Counselor. In response, the agency asserts that appellant had actual notice of the 45-day limitation period for contacting an EEO Counselor based on her attendance at EEO training. The agency argues that appellant also had constructive notice of the 45-day limitation period. In support of this position, the agency submits an affidavit from the Equal Employment Manager at the Morale, Welfare, and Recreation Activity. In the affidavit, this official states that an EEO poster, containing the 45-day limitation period and the procedure for initiating an EEO complaint, was affixed to the bulletin board in the Administrative Office of the Desert View Conference Center, and that a similar poster containing the same substantive information has continuously been affixed to that bulletin board since at least 1982. The agency submitted a copy of the first EEO poster referenced by the EEO Manager. According to the agency, appellant's belief that she needed to go through her chain of command before contacting an EEO Counselor is not credible based on her training and experience with the EEO process. With regard to the applicability of the continuing violation theory, the agency asserts that the untimely allegations are not related to the accepted allegation by a common nexus or theme. The agency maintains that the denial of leave is distinct from informal verbal counselings and the requirement to submit a written statement. Further, the agency asserts that although the verbal counselings may have been recurring, they did not continue into the 45-day limitation period, and the accepted allegation was not of a recurring nature. The agency notes that allegations 2 and 3 allege discriminatory actions by persons other than the person who allegedly disapproved appellant's leave request. 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. The Commission has 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 McGovern v. U.S. Postal Service, EEOC Request No. 05901150 (December 28, 1990); Starr v. U.S. Postal Service, EEOC Appeal No. 01890412 (April 6, 1989). 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, 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, appellant 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 appellant. Scott v. Claytor, 469 F. Supp. 22, 26 (D.D.C. 1978). The record reveals that appellant initiated contact with an EEO Counselor on July 7, 1998. The incidents at issue in allegations 2 - 6 occurred during the period of November 8, 1997 - May 4, 1998. Each of these incidents occurred more than 45 days before appellant contacted an EEO Counselor. To the extent appellant claims that she believed she needed to go through her chain of command before contacting an EEO Counselor, we note 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). The agency also established that appellant had constructive notice of the 45-day limitation period, as well as the procedure for initiating an EEO complaint. In response to the instant appeal, the agency submitted an affidavit from the Equal Employment Opportunity Manager for the Morale, Welfare, and Recreation Activity. This official stated that an EEO poster listing the 45-day limitation period and the appropriate EEO procedures was affixed to the bulletin board in the Administrative Office of the Desert View Conference Center, and that a similar poster containing the same substantive information has continuously been on that bulletin board since at least 1982. The agency submitted a copy of the first poster referenced by the EEO Manager. With regard to the applicability of the continuing violation theory, we find that the accepted allegation, which involves the denial of appellant's request for leave, is not interrelated with the dismissed allegations by a common nexus or theme. Allegations 2 - 6 concern four occasions in which appellant was verbally counseled and one incident where appellant was required to submit a written statement to explain her absence from a meeting. Appellant has not established that allegations 2 - 6 are sufficiently related to the denial of her leave request. We find that appellant has not submitted adequate justification for an extension of the 45-day limitation period. Accordingly, the agency's dismissal of allegations 2 - 6 on the grounds of untimely EEO contact was proper and is AFFIRMED. | Virgilia D. Wright v. Department of the Navy
01992356
October 21, 1999
Virgilia D. Wright, )
Appellant, )
)
v. ) Appeal No. 01992356
) Agency No. 98-67399-N01
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her 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
30, 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.
ISSUES PRESENTED
1. The first issue presented is whether the agency properly dismissed
allegations 2 - 6 of appellant's complaint on the grounds that appellant
failed to initiate contact with an EEO Counselor in a timely manner.
2. The second issue presented is whether the agency properly dismissed
allegations 2 - 7 of appellant's EEO complaint on the grounds of failure
to state a claim.
BACKGROUND
Appellant, a Waitress/NA-7420-03, at the Morale, Welfare, and Recreation
Activity's Desert View Conference Center, initiated contact with an EEO
Counselor on July 7, 1998. On August 4, 1998, appellant filed a formal
EEO complaint wherein she alleged that she was subjected to discriminatory
harassment in reprisal for her previous EEO activity when:
On July 1, 1998, her supervisor disapproved her leave request.
On November 8, 1997, the Food and Hospitality Branch Head verbally
counseled appellant for telling a patron that the Desert View Conference
Center was going downhill.
On December 21, 1997, appellant's manager required her to submit a
written statement explaining why she missed a meeting.
On March 13, 1998, appellant's supervisor verbally counseled her for
insubordination toward another employee.
On April 3, 1998, appellant's supervisor verbally counseled her for
being rude to customers.
On May 4, 1998, appellant's supervisor verbally counseled her for being
insubordinate toward the lead waitress.
On July 17, 1998, appellant's manager told appellant not to prepare a
reservation table for a party and refused to speak to appellant about it.
In its final decision, the agency accepted allegation 1 and dismissed
allegations 2 - 7 of appellant's complaint on the grounds of failure
to state a claim. The agency determined that these incidents were
unaccompanied by concrete adverse actions, and that appellant was not
rendered aggrieved with regard to the terms, conditions, or privileges of
her employment. The agency further determined that the alleged actions
could not reasonably be considered likely to deter protected activity by
appellant or other individuals. Allegations 2 - 6 were dismissed on the
grounds that appellant failed to contact an EEO Counselor in a timely
manner. The agency determined that appellant's EEO contact of July 7,
1998, was more than 45 days after the occurrence of the incidents set
forth in allegations 2 - 6. The agency concluded that these allegations
do not meet the criteria of a continuing violation. According to the
agency, the accepted allegation relates to a denial of leave and is
unrelated to the untimely counselings of appellant. The agency noted
that two of the untimely allegations involve actions taken by an agency
official other than the official involved in the accepted allegation.
On appeal, appellant argues that she believed that she needed to go
through her chain of command before she could contact an EEO Counselor.
In response, the agency asserts that appellant had actual notice of
the 45-day limitation period for contacting an EEO Counselor based on
her attendance at EEO training. The agency argues that appellant also
had constructive notice of the 45-day limitation period. In support
of this position, the agency submits an affidavit from the Equal
Employment Manager at the Morale, Welfare, and Recreation Activity.
In the affidavit, this official states that an EEO poster, containing
the 45-day limitation period and the procedure for initiating an EEO
complaint, was affixed to the bulletin board in the Administrative
Office of the Desert View Conference Center, and that a similar poster
containing the same substantive information has continuously been affixed
to that bulletin board since at least 1982. The agency submitted a copy
of the first EEO poster referenced by the EEO Manager. According to
the agency, appellant's belief that she needed to go through her chain
of command before contacting an EEO Counselor is not credible based on
her training and experience with the EEO process. With regard to the
applicability of the continuing violation theory, the agency asserts that
the untimely allegations are not related to the accepted allegation by
a common nexus or theme. The agency maintains that the denial of leave
is distinct from informal verbal counselings and the requirement to
submit a written statement. Further, the agency asserts that although
the verbal counselings may have been recurring, they did not continue
into the 45-day limitation period, and the accepted allegation was not
of a recurring nature. The agency notes that allegations 2 and 3 allege
discriminatory actions by persons other than the person who allegedly
disapproved appellant's leave request.
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.
The Commission has 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 McGovern v. U.S. Postal Service,
EEOC Request No. 05901150 (December 28, 1990); Starr v. U.S. Postal
Service, EEOC Appeal No. 01890412 (April 6, 1989).
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, 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, appellant 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 appellant.
Scott v. Claytor, 469 F. Supp. 22, 26 (D.D.C. 1978).
The record reveals that appellant initiated contact with an EEO Counselor
on July 7, 1998. The incidents at issue in allegations 2 - 6 occurred
during the period of November 8, 1997 - May 4, 1998. Each of these
incidents occurred more than 45 days before appellant contacted an EEO
Counselor. To the extent appellant claims that she believed she needed
to go through her chain of command before contacting an EEO Counselor,
we note 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). The agency also established that appellant had
constructive notice of the 45-day limitation period, as well as the
procedure for initiating an EEO complaint. In response to the instant
appeal, the agency submitted an affidavit from the Equal Employment
Opportunity Manager for the Morale, Welfare, and Recreation Activity.
This official stated that an EEO poster listing the 45-day limitation
period and the appropriate EEO procedures was affixed to the bulletin
board in the Administrative Office of the Desert View Conference Center,
and that a similar poster containing the same substantive information has
continuously been on that bulletin board since at least 1982. The agency
submitted a copy of the first poster referenced by the EEO Manager.
With regard to the applicability of the continuing violation theory,
we find that the accepted allegation, which involves the denial of
appellant's request for leave, is not interrelated with the dismissed
allegations by a common nexus or theme. Allegations 2 - 6 concern four
occasions in which appellant was verbally counseled and one incident
where appellant was required to submit a written statement to explain her
absence from a meeting. Appellant has not established that allegations
2 - 6 are sufficiently related to the denial of her leave request.
We find that appellant has not submitted adequate justification for an
extension of the 45-day limitation period. Accordingly, the agency's
dismissal of allegations 2 - 6 on the grounds of untimely EEO contact
was proper and is AFFIRMED.<1>
EEOC Regulation 29 C.F.R. §1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. §1614.103.
For employees and applicants for employment, EEOC Regulation 29
C.F.R. §1614.103 provides that individual and class complaints of
employment discrimination prohibited by Title VII (discrimination on
the bases of race, color, religion, sex and national origin), the ADEA
(discrimination on the basis of age when the aggrieved individual is
at least 40 years of age) and the Rehabilitation Act (discrimination on
the basis of disability) shall be processed in accordance with Part 29
C.F.R. §1614 of the EEOC Regulations.
The only proper inquiry, therefore, in determining whether an allegation
is within the purview of the EEO process is whether the complainant is an
aggrieved employee and whether s/he has alleged employment discrimination
covered by the EEO statutes. 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 (Apr. 21, 1994).
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).
With regard to allegation 7, we find that appellant has not established
that she was harmed with regard to a term, condition, or privilege
of her employment when her manager would not speak to her about
the instruction for appellant not to prepare a reservation table for
a party. Appellant contends that she was subjected to harassment when
she received the verbal counselings; she was required to submit a written
explanation as to why she was absent from a meeting; her leave request
was denied; and her manager would not speak to her about instructing her
not to prepare a reservation table for a party. In light of the fact
that the only allegations that remain to be considered in a harassment
analysis are the accepted allegation concerning the denial of leave and
appellant not being spoken to by her manager, we find that appellant has
not stated a cognizable claim of harassment under the EEOC Regulations.
These allegations lack sufficient pervasiveness or severity to rise to
the level of harassment. Accordingly, the agency's decision to dismiss
allegation 7 for failure to state a claim 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
1In light of our affirmance of the agency's dismissal of allegations 2 - 6
on these grounds, we need not address the agency's alternative grounds for
dismissal. | [
"EEO Counselor. See McGovern v. U.S. Postal Service, EEOC Request No. 05901150 (December 28, 1990)",
"Starr v. U.S. Postal Service, EEOC Appeal No. 01890412 (April 6, 1989)",
"Vissing v. Nuclear Regulatory Commission, EEOC Request No. 05890308 (June 13, 1989)",
"Verkennes v. Department of Defense, EEOC Reques... | [
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342 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120141656.txt | 0120141656.txt | TXT | text/plain | 12,745 | , DekaTron Corporation, Complainant, v. Thomas E. Perez, Secretary, Department of Labor, Agency. | March 18, 2014 | Appeal Number: 0120141656
Background:
At the time of events giving rise to this complaint, Complainant was CEO of a corporation with employees who served the Agency. While the record is sparse, there is a reference therein to employees working with or near the Information Technology (IT) Manager, Office of the Assistant Secretary for Administration and Management (OASAM), Departmental Budget Center (DBC).
The Agency's Equal Employment Opportunity (EEO) Program Manager wrote that in March 2013, the Agency received a complaint by Complainant on behalf of his employees claiming that the IT Project Manager, an Agency employee, subjected the employees to racist, sexist, and humiliating remarks, including referring to an employee as "Squidward", imitating Asian accents, stereotyping Asian personnel, and inquiring about "carpet kissing" policies for Islamic personnel, which constituted discrimination based on race (Asian and African-American), religion (Islamic), and disability.
In August 2013, the EEO Program Manager wrote Complainant that pursuant to its harassment procedures the matter was investigated and based on this the Agency determined that the IT Project Manager's behavior did not comport with its harassment policy. She wrote that the Agency took steps to prevent reoccurrences, and the IT Project Manager was replaced as the Contracting Officer Representative (COR) on the contract between the Agency and Complainant's corporation. The EEO Program Manager continued that Complainant's additional complaint of retaliation by Agency procurement personnel would not be accepted for investigation under the Agency's harassment procedures because it concerned the language, performance, and delivery under the contract, and occurred before the allegations of harassment were reported to the EEO office.
In August 2013, Complainant replied to the EEO Program Manager that while the IT Project Manager was replaced by a new COR, he was the boss of the successor COR, and he still jeopardized the performance of the contract by doing things such as unjustifiably partially paying invoices. Complainant wrote that his corporation had disputes on the language, performance, and delivery under the contract because the IT Project Manager orchestrated unnecessary confusion, and his racist and sexist harassing conduct was aimed at the corporation itself, a minority owned company, and this was the reason there were disputes on the language, performance, and delivery under the contract. Complainant wrote that the IT Project Manager directed the delay of contract performance for an unspecified reason, and then used this discriminatory conduct to penalize the corporation by only paying part of its subsequent invoices, financially squeezing the corporation, a small business. Complainant added that another incident of retaliation was the Agency gave it a Notice of Cure. He wrote he would take his matter to the EEOC, and wanted to know what corrective action the Agency would take.
In September 2013, the EEO Program Manager responded that the matter was now closed. Complainant later requested a FAD. On February 19, 2014, the Agency replied to Complainant that there was no provision under its harassment procedures for issuing a FAD. It advised that employees who file a complaint under its harassment procedures are not precluded from pursuing their rights under the EEO process, and gave Complainant contact information if he wished to inquire about or pursue the EEO complaint process.
On appeal Complainant wrote that in February 2013, employees of his corporation went to the Agency's EEO office to complain of racial, gender, and religious discrimination, and the Agency converted the corporation's complaint into one that alleged that the Agency violated its own internal harassment policies rather than also processing it under the EEO complaint process.
In response to Complainant's appeal, the Agency wrote that it Civil Rights Center has no record of Complainant initiating informal counseling or filing a formal EEO complaint. Almost all the documents in the record were submitted by Complainant with his appeal.
Legal Analysis:
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. | Chief Executive Officer (CEO), DekaTron Corporation,
Complainant,
v.
Thomas E. Perez,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120141656
DECISION
On March 18, 2014, Complainant filed a timely appeal with the Equal Employment Opportunity Commission from an Agency letter dated February 19, 2014, informing him that he was not entitled to a final Agency decision (FAD) under the Agency's harassment procedures. Complainant brought a case against the Agency, on behalf of his employees, 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, Complainant was CEO of a corporation with employees who served the Agency. While the record is sparse, there is a reference therein to employees working with or near the Information Technology (IT) Manager, Office of the Assistant Secretary for Administration and Management (OASAM), Departmental Budget Center (DBC).
The Agency's Equal Employment Opportunity (EEO) Program Manager wrote that in March 2013, the Agency received a complaint by Complainant on behalf of his employees claiming that the IT Project Manager, an Agency employee, subjected the employees to racist, sexist, and humiliating remarks, including referring to an employee as "Squidward", imitating Asian accents, stereotyping Asian personnel, and inquiring about "carpet kissing" policies for Islamic personnel, which constituted discrimination based on race (Asian and African-American), religion (Islamic), and disability.
In August 2013, the EEO Program Manager wrote Complainant that pursuant to its harassment procedures the matter was investigated and based on this the Agency determined that the IT Project Manager's behavior did not comport with its harassment policy. She wrote that the Agency took steps to prevent reoccurrences, and the IT Project Manager was replaced as the Contracting Officer Representative (COR) on the contract between the Agency and Complainant's corporation. The EEO Program Manager continued that Complainant's additional complaint of retaliation by Agency procurement personnel would not be accepted for investigation under the Agency's harassment procedures because it concerned the language, performance, and delivery under the contract, and occurred before the allegations of harassment were reported to the EEO office.
In August 2013, Complainant replied to the EEO Program Manager that while the IT Project Manager was replaced by a new COR, he was the boss of the successor COR, and he still jeopardized the performance of the contract by doing things such as unjustifiably partially paying invoices. Complainant wrote that his corporation had disputes on the language, performance, and delivery under the contract because the IT Project Manager orchestrated unnecessary confusion, and his racist and sexist harassing conduct was aimed at the corporation itself, a minority owned company, and this was the reason there were disputes on the language, performance, and delivery under the contract. Complainant wrote that the IT Project Manager directed the delay of contract performance for an unspecified reason, and then used this discriminatory conduct to penalize the corporation by only paying part of its subsequent invoices, financially squeezing the corporation, a small business. Complainant added that another incident of retaliation was the Agency gave it a Notice of Cure. He wrote he would take his matter to the EEOC, and wanted to know what corrective action the Agency would take.
In September 2013, the EEO Program Manager responded that the matter was now closed. Complainant later requested a FAD. On February 19, 2014, the Agency replied to Complainant that there was no provision under its harassment procedures for issuing a FAD. It advised that employees who file a complaint under its harassment procedures are not precluded from pursuing their rights under the EEO process, and gave Complainant contact information if he wished to inquire about or pursue the EEO complaint process.
On appeal Complainant wrote that in February 2013, employees of his corporation went to the Agency's EEO office to complain of racial, gender, and religious discrimination, and the Agency converted the corporation's complaint into one that alleged that the Agency violated its own internal harassment policies rather than also processing it under the EEO complaint process.
In response to Complainant's appeal, the Agency wrote that it Civil Rights Center has no record of Complainant initiating informal counseling or filing a formal EEO complaint. Almost all the documents in the record were submitted by Complainant with his appeal.
ANALYSIS AND FINDINGS
Our regulations provide that claims by employees and applicants for employment are covered by 29 C.F.R. Part 1614. See 29 C.F.R. § 1614.103. While a corporation is a legal entity and not an employee, Complainant contends that employees thereof initiated EEO counseling in February 2013, and he contacted the Agency's EEO office on behalf of corporation employees who serve the Agency.
As Complainant wishes to pursue an EEO case, the Agency must assign him an EEO counselor and process the matter pursuant to 29 C.F.R. Part 1614. This must include advising Complainant on the EEO process and giving him the right to file a formal complaint. If Complainant files a formal complaint, regardless of how it is styled, the Agency must make a determination on whether to accept the complaint for investigation in whole or part, or dismiss the complaint.
Accordingly, Complainant's claims of discrimination are remanded in accordance with the order below.
ORDER
The Agency is ordered to assign Complainant an EEO counselor and notify him and his attorney of this within 15 calendar days of the date this decision becomes final. It must process Complainant's case in accordance with 29 C.F.R. § 1614.105 et seq.1
Documentation of the notification 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 (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
October 16, 2014
__________________
Date
1 If the employees of the corporation expressed or express a wish to pursue the EEO process in their own right, the Agency should also counsel them on the EEO process. If the Agency has concerns about the timeliness of EEO counseling, it should note Complainant's contention that employees initiated EEO counseling in February 2013, and the contention that he also previously did so. Further, under common law, an Agency can be considered an employer of contractors (meaning people) who serve it if the Agency has sufficient control over their positions. See Ma v. Department of Health and Human Services, EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998); Baker v. Department of the Army, EEOC Appeal No. 01A45313 (March 16, 2006).
------------------------------------------------------------
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343 | https://www.eeoc.gov/sites/default/files/decisions/2024_05_22/2024000557.pdf | 2024000557.pdf | PDF | application/pdf | 12,889 | Reuben D.,1 Complainant, v. Pete Butt igieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency. | October 18, 2023 | Appeal Number: 2024000557
Background:
At the time of events giving rise to this complaint, Complainant worked as an Air Traffic Control Series/2152/KH at the Agency’s Miami Air Route Traffic Control Center facility in Miami,
Florida. On June 23, 2023, Complainant i nitiated EEO contact. On August 16, 2023, Complainant filed a
formal complaint alleging that the Agency subjected him to discrimination and
harassment/hostile work environment on the bases of race (Caucasian) and sex ual orientation
(unspecified ) when in or around July 2022 through May 7, 2023, management did not address
Complainant’s claims of derogatory comments from coworkers.
The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO
counselor contact. In its dismissal, the Agency stated that the Agency’s Departmental Office of
Civil Rights (DOCR) sent Complainant a clarification email and requested he provide an
explanation to the reason he contacted DOCR beyond the regulatory 45 calendar timeframe , but
Complainant did not provide DOCR with a response. The Agency further noted that
Complainant completed the No FEAR training on December 7, 2020, and August 28, 2022.
The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant states he was not aware of the ti me limit for EEO counselor contact.
Complainant states he was preoccupied with caring for his ne wborn son (born September 30,
2023) when the EEO counselor contacted him for an explanation regarding the delay in contacting an EEO counselor and he therefore did not respond until October 13, 2023.
Complainant further states he was not familiar with the EEO process or the timeframe needed for submission.
The Agency contends on appeal that Complainant’s EEO counselor contact was untimely as it took place 47 da ys after the last incident of harassment , Complainant had constructive notice of
the reporting r equirements based on his No FEAR training, and Complainant has not
demonstrated incapacity or that he was misled.
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
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) provides that an aggr ieved 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 Regula tion 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 45 days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action, withi n 45 days of the
effective date of the action.
The Supreme Court has held that a complaint 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 wit hin the filing period. See National Railroad Pas senger Corp. v. Morgan, 536 U.S.
101 (2002). The Court recognized that allegations of harassment and the existence of a hostile
work environment involve, by their nature, a series of incidents linked by a pat tern of conduct.
This is contrasted with claims involving discrete acts such as a promotion or termination which are clearly defined. In those instances, the Court held that “discrete discriminatory acts are not actionable if time barred, even when they ar e related to acts alleged in timely filed charges.” Id.
Untimely discrete acts may, however, be used as evidence in support of a timely claim of harassment. Id. Pursuant to Morgan, an overall claim of harassment is timely if all the acts
constituting the c laim are part of the same unlawful practice and at least one act falls within the
filing period. See also Agnus L. v. Dep’t of Transportation, EEOC Appeal No. 2019004992
(Feb. 6, 2020).
Here, Complainant stated in counseling that he was subjected to ongoi ng harassment beginning
in July 2022, with the most recent harassing event occurr ing on May 7, 2023. He stated that he
reported this harassment to Human Resources on May 8, 2023, believing Human Resources would forward his complaint to the appropriate off ice. Complainant learned on June 19, 2023
that this complaint to Human Resources was not forwarded to the Agency’s EEO office .
EEOC Regulation 29 C.F.R. § 1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complainant can esta blish 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.
Although Complainant cites the birth of his son as the reason for not responding to the Agency’s request for clarification, the record reflects he had al ready explained to the EEO counselor that
his contact was delayed due to his belief that Human Resources would forward his complaint to
the appropriate office. The birth of his son in September does not show that Complainant was
prevented from contacting a n EEO counselor in May or June. We do not find that Complainant
has prevented evidence to show that he was misled or that his belief that Human Resources would forward his complaint was based on information provi ded to him by the Agency.
Complainant also alleged that he was not aware of the time limits for contacting an EEO
counselor and he was not familiar with the EEO process. However, the Agency provided
evidence that Complainant was or should have been famili ar with the 45 -day limitation period
based o n having completed and/or passed training in 2018 and 2022 that covers the No FEAR
Act and teaches employees about discrimination, retaliation, and reporting requirements and
covers time deadlines for filing EEO c laims, including the requirement that any EEO claim must
be raised with an EEO counselor within 45 days of the alleged adverse employment action.
While we are sympathetic to Complainant’s situation, his EEO counselor contact was not timely made, and he h as not shown than an extension is warranted. | Reuben D.,1
Complainant,
v.
Pete Butt igieg,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 2024000557
Agency No. 2023-30055- FAA -03
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission ) from the Agency's decision dated October 18, 2023, 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 reasons presented below , we AFFIRM
the Agency’s final decision dismissing Complainant’s complaint.
ISSUE PRESENTED
Whether the Agency’s final decision properly dismissed Complainant’s formal complaint on the grounds of untimely EEO Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Air Traffic Control Series/2152/KH at the Agency’s Miami Air Route Traffic Control Center facility in Miami,
Florida. On June 23, 2023, Complainant i nitiated EEO contact. On August 16, 2023, Complainant filed a
formal complaint alleging that the Agency subjected him to discrimination and
harassment/hostile work environment on the bases of race (Caucasian) and sex ual orientation
(unspecified ) when in or around July 2022 through May 7, 2023, management did not address
Complainant’s claims of derogatory comments from coworkers.
The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO
counselor contact. In its dismissal, the Agency stated that the Agency’s Departmental Office of
Civil Rights (DOCR) sent Complainant a clarification email and requested he provide an
explanation to the reason he contacted DOCR beyond the regulatory 45 calendar timeframe , but
Complainant did not provide DOCR with a response. The Agency further noted that
Complainant completed the No FEAR training on December 7, 2020, and August 28, 2022.
The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant states he was not aware of the ti me limit for EEO counselor contact.
Complainant states he was preoccupied with caring for his ne wborn son (born September 30,
2023) when the EEO counselor contacted him for an explanation regarding the delay in contacting an EEO counselor and he therefore did not respond until October 13, 2023.
Complainant further states he was not familiar with the EEO process or the timeframe needed for submission.
The Agency contends on appeal that Complainant’s EEO counselor contact was untimely as it took place 47 da ys after the last incident of harassment , Complainant had constructive notice of
the reporting r equirements based on his No FEAR training, and Complainant has not
demonstrated incapacity or that he was misled.
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
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) provides that an aggr ieved 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 Regula tion 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 45 days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action, withi n 45 days of the
effective date of the action.
The Supreme Court has held that a complaint 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 wit hin the filing period. See National Railroad Pas senger Corp. v. Morgan, 536 U.S.
101 (2002). The Court recognized that allegations of harassment and the existence of a hostile
work environment involve, by their nature, a series of incidents linked by a pat tern of conduct.
This is contrasted with claims involving discrete acts such as a promotion or termination which are clearly defined. In those instances, the Court held that “discrete discriminatory acts are not actionable if time barred, even when they ar e related to acts alleged in timely filed charges.” Id.
Untimely discrete acts may, however, be used as evidence in support of a timely claim of harassment. Id. Pursuant to Morgan, an overall claim of harassment is timely if all the acts
constituting the c laim are part of the same unlawful practice and at least one act falls within the
filing period. See also Agnus L. v. Dep’t of Transportation, EEOC Appeal No. 2019004992
(Feb. 6, 2020).
Here, Complainant stated in counseling that he was subjected to ongoi ng harassment beginning
in July 2022, with the most recent harassing event occurr ing on May 7, 2023. He stated that he
reported this harassment to Human Resources on May 8, 2023, believing Human Resources would forward his complaint to the appropriate off ice. Complainant learned on June 19, 2023
that this complaint to Human Resources was not forwarded to the Agency’s EEO office .
EEOC Regulation 29 C.F.R. § 1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complainant can esta blish 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.
Although Complainant cites the birth of his son as the reason for not responding to the Agency’s request for clarification, the record reflects he had al ready explained to the EEO counselor that
his contact was delayed due to his belief that Human Resources would forward his complaint to
the appropriate office. The birth of his son in September does not show that Complainant was
prevented from contacting a n EEO counselor in May or June. We do not find that Complainant
has prevented evidence to show that he was misled or that his belief that Human Resources would forward his complaint was based on information provi ded to him by the Agency.
Complainant also alleged that he was not aware of the time limits for contacting an EEO
counselor and he was not familiar with the EEO process. However, the Agency provided
evidence that Complainant was or should have been famili ar with the 45 -day limitation period
based o n having completed and/or passed training in 2018 and 2022 that covers the No FEAR
Act and teaches employees about discrimination, retaliation, and reporting requirements and
covers time deadlines for filing EEO c laims, including the requirement that any EEO claim must
be raised with an EEO counselor within 45 days of the alleged adverse employment action.
While we are sympathetic to Complainant’s situation, his EEO counselor contact was not timely made, and he h as not shown than an extension is warranted.
CONCLUSION
For the foregoing reasons, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0124.1)
The Commission may, in its discretion, re consider 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 receip t 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 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://publicpor tal.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 c ertified mail addressed to 131 M Street, NE,
Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to recon sider 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 Federa l Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g).
Either party’s request and/or statement or brief in oppos ition 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 pa rty’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
reconsideration. The Commission will consider r equest s for reconsideration filed after the
deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(f).
COMPLAINANT’S RIGHT TO FI LE A CIVIL ACTION (S0124)
You have the right to file a civil action in an appropriate United States District Cou rt 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 f ull na me 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 recons ider a nd 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 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 t o represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the req uests 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 (pleas e 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
April 4, 2024
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344 | https://www.eeoc.gov/sites/default/files/decisions/2021_08_31/2021002412.pdf | 2021002412.pdf | PDF | application/pdf | 12,755 | Mica B .,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. | February 8, 2021 | Appeal Number: 2021002412
Background:
At the time of events giving rise to this complaint, Complainant worked as a Senior Attorney Advisor at the Agency’s Office of Hearing Operations in Knoxville, Tennessee. The record reflects that Complainant had filed several EEO complaints prior to the events at
issue . As noted in the Agency’s FAD, o n October 4, 2013, Complainant filed a formal EEO
Equal Employment Opportunity (EEO) complaint in ATL -13-0621- SSA. On December 30,
2013, Complainant filed a formal EEO complaint in ATL -13-0859. The Agency accepted and
consolidated Complainant’s complaints on March 15, 2014. (Agency Appeal Brief, Ex. 2). On
December 12, 2014, Complainant requested a hearing on her consolidated complaints. On April
7, 2015, and on September 18, 2017, Complainant filed motions to amend her complaints at hearing. (Agency Appeal Brief, Ex. 3). On September 8, 2020, the EEOC Administrative Judge
(AJ) issued an Order Granting in Part and Denying in Part Complainant’s Motions to Amend.
The Order held that a portion of the proposed amendments were not sufficiently like or related to
the claims at issue in her consolidated complaints. Therefore, the AJ remanded those claims back
to the Agency to process as a separate EEO complaint. The EEOC AJ ordered that the Agency
should use the dates Complainant filed her motions as the initial contact dates for these claims
for timeliness purposes , stating :
The Agency shall COMMENCE processing the requested amendments that are
denied (and not covered by a settlement agreement) herein as a separate EEO complaints, and April 7, 2015 and September 18, 2017 shall be used respectively, considering the requests contained in each motion, und er and
pursuant with 29 C.F.R. § 1614.105(a) for timeliness purposes.
(Agency Appeal Brief, Ex. 4, emphasis in original ).
The remaining issue left to be remanded back to the Age ncy to process as a separate EEO
complaint was the matter set forth in Complainant’s September 18, 2017 Motion to Amend:
Whether Complainant was subjected to discrimination on the basis of her disability (physical and mental), reprisal (prior EEO activity), sex (female; in the
context of domestic violence and sexual stereotyping) , race (Caucasian) and age
(DOB: 05/28/1960) when, from the period of 2000 to fall of 2013, the Agency
refused Complainant’s requests for reasonable accommodation and failed to
engage in the interactive process. Specifically, Complainant alleges that the
Agency refused her requests for reasonable accommodation with respect to her
requests to verbally transcribe decisions and some of her requests to work from
home.
Agency Appeal Brief, Ex. 3, pp. 9- 10.
As ordered by the AJ, the Agency processed this claim as a new complaint and Complainant was subsequently issued a Notice of Right to File . On January 5, 2021, Complainant filed a formal
complaint alleging that the Agency subjected her to discrimination on the basis of disability when, from April 2000 until F all 2013, management did not provide reasonable accommodations
(RA) for her to adequately perform job duties and hindered the RA process by requesting excessive medical documentation.
The Agency dismissed this claim in accordance with 29 C.F.R. §1614.107(a)(2) for untimely
EEO counselor contact. Complainant filed the instant appeal.
On appeal, Complainant contends the Agency misapplied the laws governing the acceptance or
dismissal of claims and the Agency improperly dismissed all of Complainant’s claims under 29
CFR 1614.107(a)(2) and 29 CFR 1614.105. Complainant argues the Agency has not met its burden to sufficiently develop the record with respect to timelin ess and it has not provided
evidence or proof to support its FAD.
The Agen cy contends on appeal that Complainant’s complaint was properly dismissed because
her contact with an EEO counselor was untimely and because Complainant is trying to relitigate
issues from her earlier EEO complaints and/or she waived these claims as part o f a prior 2009
settlement agreement.
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 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 complaint s where the complainant did not 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 45 days of the effective date of the action. EEOC Regu lation 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 discrim inatory 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 Commi ssion.
Complainant is alleging discrimination occurred during the period from April 2000 until Fall 2013. Thus , using the date most favorable to Complainant, she needed to contact an EEO
counselor within forty- five (45) days of November 30, 2013, in other words, on or before
January 14, 2014. She did not raise issues of discrimination related to reasonable accommodation until her Motion to Amend the prior complaint on September 18, 2017. This is well outside the proscribed period. Despite her assertions th at she raised this issue in EEO counseling in 2013 or
that her Motion to Amend in September 2017 was merely a clarification of prior issues , she has
not provided any evidence to support this assertion.
It is true that t he 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. However, given that Complainant filed two other EEO complaints in 2013 (and had
previ ously filed an EEO complaint in or before 2009) , she should have reasonably suspected at
that time that any denial of reasonable accommodation was also potentially discriminatory.
Similarly, while Complainant argues the Agency should extend the time limit, she has not provided any actual evidence to show that she was not aware of the time limits, that she did not know or reasonably should not have known of the discriminatory matter, or that she was prevented from contacting an EEO counselor at that time.
Thus, Complainant’s EEO counselor contact was not timely in this matter and the Agency
correctly dismissed her complaint pursuant to 29 C.F.R. § 1614.107(a)(2) . | Mica B .,1
Complainant,
v.
Andrew M. Saul,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 2021002412
Agency No. ATL-17-0968
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision (FAD) dated February 8, 2021, dismissing her
complaint alleging 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
At the time of events giving rise to this complaint, Complainant worked as a Senior Attorney Advisor at the Agency’s Office of Hearing Operations in Knoxville, Tennessee. The record reflects that Complainant had filed several EEO complaints prior to the events at
issue . As noted in the Agency’s FAD, o n October 4, 2013, Complainant filed a formal EEO
Equal Employment Opportunity (EEO) complaint in ATL -13-0621- SSA. On December 30,
2013, Complainant filed a formal EEO complaint in ATL -13-0859. The Agency accepted and
consolidated Complainant’s complaints on March 15, 2014. (Agency Appeal Brief, Ex. 2). On
December 12, 2014, Complainant requested a hearing on her consolidated complaints. On April
7, 2015, and on September 18, 2017, Complainant filed motions to amend her complaints at hearing. (Agency Appeal Brief, Ex. 3). On September 8, 2020, the EEOC Administrative Judge
(AJ) issued an Order Granting in Part and Denying in Part Complainant’s Motions to Amend.
The Order held that a portion of the proposed amendments were not sufficiently like or related to
the claims at issue in her consolidated complaints. Therefore, the AJ remanded those claims back
to the Agency to process as a separate EEO complaint. The EEOC AJ ordered that the Agency
should use the dates Complainant filed her motions as the initial contact dates for these claims
for timeliness purposes , stating :
The Agency shall COMMENCE processing the requested amendments that are
denied (and not covered by a settlement agreement) herein as a separate EEO complaints, and April 7, 2015 and September 18, 2017 shall be used respectively, considering the requests contained in each motion, und er and
pursuant with 29 C.F.R. § 1614.105(a) for timeliness purposes.
(Agency Appeal Brief, Ex. 4, emphasis in original ).
The remaining issue left to be remanded back to the Age ncy to process as a separate EEO
complaint was the matter set forth in Complainant’s September 18, 2017 Motion to Amend:
Whether Complainant was subjected to discrimination on the basis of her disability (physical and mental), reprisal (prior EEO activity), sex (female; in the
context of domestic violence and sexual stereotyping) , race (Caucasian) and age
(DOB: 05/28/1960) when, from the period of 2000 to fall of 2013, the Agency
refused Complainant’s requests for reasonable accommodation and failed to
engage in the interactive process. Specifically, Complainant alleges that the
Agency refused her requests for reasonable accommodation with respect to her
requests to verbally transcribe decisions and some of her requests to work from
home.
Agency Appeal Brief, Ex. 3, pp. 9- 10.
As ordered by the AJ, the Agency processed this claim as a new complaint and Complainant was subsequently issued a Notice of Right to File . On January 5, 2021, Complainant filed a formal
complaint alleging that the Agency subjected her to discrimination on the basis of disability when, from April 2000 until F all 2013, management did not provide reasonable accommodations
(RA) for her to adequately perform job duties and hindered the RA process by requesting excessive medical documentation.
The Agency dismissed this claim in accordance with 29 C.F.R. §1614.107(a)(2) for untimely
EEO counselor contact. Complainant filed the instant appeal.
On appeal, Complainant contends the Agency misapplied the laws governing the acceptance or
dismissal of claims and the Agency improperly dismissed all of Complainant’s claims under 29
CFR 1614.107(a)(2) and 29 CFR 1614.105. Complainant argues the Agency has not met its burden to sufficiently develop the record with respect to timelin ess and it has not provided
evidence or proof to support its FAD.
The Agen cy contends on appeal that Complainant’s complaint was properly dismissed because
her contact with an EEO counselor was untimely and because Complainant is trying to relitigate
issues from her earlier EEO complaints and/or she waived these claims as part o f a prior 2009
settlement agreement.
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 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 complaint s where the complainant did not 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 45 days of the effective date of the action. EEOC Regu lation 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 discrim inatory 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 Commi ssion.
Complainant is alleging discrimination occurred during the period from April 2000 until Fall 2013. Thus , using the date most favorable to Complainant, she needed to contact an EEO
counselor within forty- five (45) days of November 30, 2013, in other words, on or before
January 14, 2014. She did not raise issues of discrimination related to reasonable accommodation until her Motion to Amend the prior complaint on September 18, 2017. This is well outside the proscribed period. Despite her assertions th at she raised this issue in EEO counseling in 2013 or
that her Motion to Amend in September 2017 was merely a clarification of prior issues , she has
not provided any evidence to support this assertion.
It is true that t he 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. However, given that Complainant filed two other EEO complaints in 2013 (and had
previ ously filed an EEO complaint in or before 2009) , she should have reasonably suspected at
that time that any denial of reasonable accommodation was also potentially discriminatory.
Similarly, while Complainant argues the Agency should extend the time limit, she has not provided any actual evidence to show that she was not aware of the time limits, that she did not know or reasonably should not have known of the discriminatory matter, or that she was prevented from contacting an EEO counselor at that time.
Thus, Complainant’s EEO counselor contact was not timely in this matter and the Agency
correctly dismissed her complaint pursuant to 29 C.F.R. § 1614.107(a)(2) .
CONCLUSION
The Agency's final decision dismissing the formal complaint is AFFIRMED for the reasons
discussed above.
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 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 a ddressed
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 (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 the se 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 9, 2021
Date | [
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345 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01991888.txt | 01991888.txt | TXT | text/plain | 13,199 | 00 . Salvatore J. DeNucci, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency. | December
29, 1998 | Appeal Number: 01991888
Background:
Complainant filed a formal complaint on October 22, 1998, alleging
discrimination on the basis of age (58 at the time of the event) when he
was terminated from the agency (National Park Service) effective July
5, 1996. He first contacted an EEO Counselor regarding the matter on
September 16, 1998.
In its final agency decision (FAD), the agency dismissed the complaint for
untimely contact with an EEO Counselor. It stated that the complainant
was aware or should have been aware of the time limits for contacting an
EEO Counselor because the site at which complainant worked had information
posted on the bulletin board regarding the procedures for processing
complaints of discrimination. It claimed that the information included
the EEO Counselor's pictures with their names and telephone numbers.
This appeal followed. In his appeal, complainant claimed that he
was never instructed regarding EEO procedures, and did not see any EEO
Counselor contact posters in the building in which he worked. He stated
that the National Historic Site at which he worked had several buildings
and that he was only allowed in the ones relevant to his position.
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 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 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.
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).
In this case, the agency has failed to produce any evidence showing that
complainant had actual or constructive notice of the time limit for
contacting an EEO Counselor. It does not provide any evidence in the
record that EEO posters were on display in complainant's work facility,
either in the form of a copy of any EEO posters or an affidavit describing
the location of the posters during the relevant time period. Nor does
it provide persuasive evidence that complainant was otherwise notified
of the procedures for filing an EEO complaint at any time during his
employment with the agency. The only relevant information in the record
was contained in the Counselor's Report, which stated that posters were
located in the locomotive shop and in the interpretive lunch room. This
information alone, however, is inadequate to satisfy the agency's burden
of showing that the complainant was on actual or constructive notice.
Therefore, the Commission cannot find that the complainant had actual or
constructive notice of the time limits for contacting an EEO Counselor.
The Commission shall remand the claim to the agency so that it may conduct
a supplemental investigation to determine if complainant had actual or
constructive notice of the time limit for contacting the EEO Counselor. | Salvatore J. DeNucci v. Department of the Interior
01991888
08-28-00
.
Salvatore J. DeNucci,
Complainant,
v.
Bruce Babbitt,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01991888
Agency No. FNP-99-008
DECISION
INTRODUCTION
Complainant filed an appeal with this Commission from a final agency
decision concerning his complaint of unlawful employment discrimination in
violation of the Age Discrimination in Employment Act of 1967, as amended,
29 U.S.C. § 621 et seq.<1> The final agency decision was dated December
29, 1998, and received by complainant on January 2, 1999. The appeal
was postmarked on January 5, 1999. Accordingly, the appeal is timely
(see 29 C.F.R. § 1614.402(a)), and is accepted in accordance with 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. § 1614.405).
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed complainant's
complaint for untimely contact with an EEO Counselor.
BACKGROUND
Complainant filed a formal complaint on October 22, 1998, alleging
discrimination on the basis of age (58 at the time of the event) when he
was terminated from the agency (National Park Service) effective July
5, 1996. He first contacted an EEO Counselor regarding the matter on
September 16, 1998.
In its final agency decision (FAD), the agency dismissed the complaint for
untimely contact with an EEO Counselor. It stated that the complainant
was aware or should have been aware of the time limits for contacting an
EEO Counselor because the site at which complainant worked had information
posted on the bulletin board regarding the procedures for processing
complaints of discrimination. It claimed that the information included
the EEO Counselor's pictures with their names and telephone numbers.
This appeal followed. In his appeal, complainant claimed that he
was never instructed regarding EEO procedures, and did not see any EEO
Counselor contact posters in the building in which he worked. He stated
that the National Historic Site at which he worked had several buildings
and that he was only allowed in the ones relevant to his position.
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.
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 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 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.
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).
In this case, the agency has failed to produce any evidence showing that
complainant had actual or constructive notice of the time limit for
contacting an EEO Counselor. It does not provide any evidence in the
record that EEO posters were on display in complainant's work facility,
either in the form of a copy of any EEO posters or an affidavit describing
the location of the posters during the relevant time period. Nor does
it provide persuasive evidence that complainant was otherwise notified
of the procedures for filing an EEO complaint at any time during his
employment with the agency. The only relevant information in the record
was contained in the Counselor's Report, which stated that posters were
located in the locomotive shop and in the interpretive lunch room. This
information alone, however, is inadequate to satisfy the agency's burden
of showing that the complainant was on actual or constructive notice.
Therefore, the Commission cannot find that the complainant had actual or
constructive notice of the time limits for contacting an EEO Counselor.
The Commission shall remand the claim to the agency so that it may conduct
a supplemental investigation to determine if complainant had actual or
constructive notice of the time limit for contacting the EEO Counselor.
CONCLUSION
Accordingly, the decision of the agency is VACATED, and is REMANDED to
the agency to conduct a supplemental investigation in accordance with
this decision and the applicable regulations.
ORDER
The agency shall investigate the issue of whether complainant had
actual or constructive knowledge of the time limit for contacting an
EEO Counselor. The agency shall supplement the record with copies of
the EEO posters, or affidavits describing the posters if the posters
are unavailable, and any other evidence showing that complainant was
informed, or should have known, of the time limits for contacting an
EEO Counselor.
The agency shall redetermine whether complainant timely contacted an
EEO Counselor. Within 60 days of the date this decision becomes final,
the agency shall either issue a letter to complainant accepting the
claim for investigation, or issue a new decision dismissing the claim,
with all relevant information concerning appeal rights. A copy of the
letter accepting the claim or new decision dismissing the claim shall
be sent to the Compliance Officer as referenced herein.
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 (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
(R0400)
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
__08-28-00________________
Date
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.
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346 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120064105.txt | 0120064105.txt | TXT | text/plain | 11,447 | Doratha Klugel, Complainant, v. Lawrence M. Small, Secretary, Smithsonian Institution, Agency. | June 5, 2006 | Appeal Number: 01200641051
Complaint Allegations:
In her complaint, complainant alleged that she was subjected to discrimination on the bases of sex (female), disability (anxiety and perceived), and reprisal for prior protected EEO activity under Title VII, and the Rehabilitation Act, when she was subjected to sexual harassment and /or was discriminated against, which created a hostile work environment, during the period of December 2004 through May 12, 2005.
Case Facts:
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 5, 2006, 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. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. § 791 et seq. In her complaint, complainant alleged that she
was subjected to discrimination on the bases of sex (female), disability
(anxiety and perceived), and reprisal for prior protected EEO activity
under Title VII, and the Rehabilitation Act, when she was subjected to
sexual harassment and /or was discriminated against, which created a
hostile work environment, during the period of December 2004 through
May 12, 2005.
The agency dismissed complainant's complaint for untimely EEO counselor
contact, finding that she had not initiated the EEO process within 45
days of the date of the matter alleged to be discriminatory, under 29
C.F.R. § 1614.107(a)(2).
The chronology of events is as follows. Between December 2004 and May
12, 2005, complainant was the subject of an investigation by the agency's
Office of the Inspector General, had her assignments and duties changed
and / or reduced, was told she could not take any more leave and was
placed on a "Progress Review." She was also informed that her last
day of work would be August 2, 2005 because her position was funded by
a five-year grant and there was no more money in the grant to pay her.
Complainant resigned from her position on May 12, 2005.
Subsequent to her resignation, through her attorney, she filed a
complaint of employment discrimination with the Washington, D.C. Human
Rights Commission on July 2, 2005. On July 27, 2005, she filed a formal
discrimination complaint with the Washington Field Office (WFO) of the
Equal Employment Opportunity Commission (EEOC), utilizing the charge
filing process for private sector employees. On August 18, 2005, the
WFO informed complainant and her attorney that she should contact the
agency and initiate the EEO process, as outlined by 29 C.F.R. Part 1614,
for federal employees. On September 23, 2005, complainant contacted the
EEO office of the agency in order to initiate EEO counseling. The agency
issued a Notice of Right to File on December 13, 2005, and reissued the
Notice on May 15, 2006, after notification that neither the complainant
nor her attorney had received it. Complainant's formal complaint was
filed with the agency on May 19, 2006. The agency issued a final agency
decision on June 5, 2006, and she filed the subsequent appeal on July 5,
2006.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.105(a)(2) 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 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.
In this case, the last possible date complainant could have been subjected
to discrimination was May 12, 2005, the date of her resignation. In order
for her complaint to be considered timely filed, she should have initiated
EEO counseling no later than June 26, 2005. Complainant's earliest date
of contact to initiate any EEO process, federal or local, was July 2,
2005, when she contacted the Washington, D.C. Human Rights Commission.
Even were we to consider this date the initiation of her EEO complaint,
complainant would be untimely.
Complainant's attorney argues on appeal (and also raised with the agency
when filing the formal complaint), that complainant should be considered
to have initiated the EEO process on April 18, 2005, when in a letter to
the administrative officer of the agency facility at which complainant
worked, the attorney protested a mandatory referral to an Employees
Assistance Plan (EAP) Coordinator. In that letter the attorney wrote
that "[a] mandated EAP...may implicate various anti-discrimination laws"
and that it "triggers issues under the Rehabilitation Act of 1973."
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). Under this standard, we find that the April 18, 2005 letter
is insufficient to demonstrate an intent to begin the EEO process.
Merely invoking the federal anti-discrimination laws does not exhibit an
intent to begin the EEO process. No where in the letter does it state
that complainant wishes to begin the complaint process. An administrative
officer is not "logically connected to the EEO process" as they would
administer many office / agency-wide directives and policies. On its face
from the text of the letter, it would not be simple to conclude that the
complainant should be referred to an EEO counselor. It does communicate
fully her objection to being referred to EAP for mandatory counseling.
Further, the agency's responsibility to inform complainant of her rights
in the EEO process is triggered after she has initiated the process and
contacted an EEO counselor, not before. The agency is not required to
intuit her intent.
Complainant's attorney also argues on appeal that complainant had
contacted the EEO office prior to the April 18, 2005 letter and that
she was affirmatively mislead that the agency was not a federal agency
governed by 29 C.F.R. 1614, and that complainant was not a federal
employee. However, a thorough review of the record does not reveal any
evidence in support of this claim. There is no affidavit from complainant
detailing her date of contact, the person contacted or what was said.
The only document in the record which may have been construed to say that
the agency was not subject to laws applicable to other federal agencies
is a letter dated June 8, 2005 from the agency Office of the Inspector
General which informed complainant's attorney that the agency was not
formally subject to the Privacy Act or to the Freedom of Information Act
(FOIA), but that it was providing records "as a courtesy" and "look[s] to
FOIA for guidance." No where does the letter state that the agency would
not be subject to the federal administrative EEO process. We also note
that this letter post-dates the April 18, 2005 letter from complainant's
attorney.
Therefore, after a review of the record and the briefs of both parties,
it is the decision of the Commission to affirm the agency's decision to
dismiss complainant's complaint. | Doratha Klugel,
Complainant,
v.
Lawrence M. Small,
Secretary,
Smithsonian Institution,
Agency.
Appeal No. 01200641051
Agency No. 06-09-051906
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 5, 2006, 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. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. § 791 et seq. In her complaint, complainant alleged that she
was subjected to discrimination on the bases of sex (female), disability
(anxiety and perceived), and reprisal for prior protected EEO activity
under Title VII, and the Rehabilitation Act, when she was subjected to
sexual harassment and /or was discriminated against, which created a
hostile work environment, during the period of December 2004 through
May 12, 2005.
The agency dismissed complainant's complaint for untimely EEO counselor
contact, finding that she had not initiated the EEO process within 45
days of the date of the matter alleged to be discriminatory, under 29
C.F.R. § 1614.107(a)(2).
The chronology of events is as follows. Between December 2004 and May
12, 2005, complainant was the subject of an investigation by the agency's
Office of the Inspector General, had her assignments and duties changed
and / or reduced, was told she could not take any more leave and was
placed on a "Progress Review." She was also informed that her last
day of work would be August 2, 2005 because her position was funded by
a five-year grant and there was no more money in the grant to pay her.
Complainant resigned from her position on May 12, 2005.
Subsequent to her resignation, through her attorney, she filed a
complaint of employment discrimination with the Washington, D.C. Human
Rights Commission on July 2, 2005. On July 27, 2005, she filed a formal
discrimination complaint with the Washington Field Office (WFO) of the
Equal Employment Opportunity Commission (EEOC), utilizing the charge
filing process for private sector employees. On August 18, 2005, the
WFO informed complainant and her attorney that she should contact the
agency and initiate the EEO process, as outlined by 29 C.F.R. Part 1614,
for federal employees. On September 23, 2005, complainant contacted the
EEO office of the agency in order to initiate EEO counseling. The agency
issued a Notice of Right to File on December 13, 2005, and reissued the
Notice on May 15, 2006, after notification that neither the complainant
nor her attorney had received it. Complainant's formal complaint was
filed with the agency on May 19, 2006. The agency issued a final agency
decision on June 5, 2006, and she filed the subsequent appeal on July 5,
2006.
EEOC Regulation 29 C.F.R. § 1614.105(a)(2) 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 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.
In this case, the last possible date complainant could have been subjected
to discrimination was May 12, 2005, the date of her resignation. In order
for her complaint to be considered timely filed, she should have initiated
EEO counseling no later than June 26, 2005. Complainant's earliest date
of contact to initiate any EEO process, federal or local, was July 2,
2005, when she contacted the Washington, D.C. Human Rights Commission.
Even were we to consider this date the initiation of her EEO complaint,
complainant would be untimely.
Complainant's attorney argues on appeal (and also raised with the agency
when filing the formal complaint), that complainant should be considered
to have initiated the EEO process on April 18, 2005, when in a letter to
the administrative officer of the agency facility at which complainant
worked, the attorney protested a mandatory referral to an Employees
Assistance Plan (EAP) Coordinator. In that letter the attorney wrote
that "[a] mandated EAP...may implicate various anti-discrimination laws"
and that it "triggers issues under the Rehabilitation Act of 1973."
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). Under this standard, we find that the April 18, 2005 letter
is insufficient to demonstrate an intent to begin the EEO process.
Merely invoking the federal anti-discrimination laws does not exhibit an
intent to begin the EEO process. No where in the letter does it state
that complainant wishes to begin the complaint process. An administrative
officer is not "logically connected to the EEO process" as they would
administer many office / agency-wide directives and policies. On its face
from the text of the letter, it would not be simple to conclude that the
complainant should be referred to an EEO counselor. It does communicate
fully her objection to being referred to EAP for mandatory counseling.
Further, the agency's responsibility to inform complainant of her rights
in the EEO process is triggered after she has initiated the process and
contacted an EEO counselor, not before. The agency is not required to
intuit her intent.
Complainant's attorney also argues on appeal that complainant had
contacted the EEO office prior to the April 18, 2005 letter and that
she was affirmatively mislead that the agency was not a federal agency
governed by 29 C.F.R. 1614, and that complainant was not a federal
employee. However, a thorough review of the record does not reveal any
evidence in support of this claim. There is no affidavit from complainant
detailing her date of contact, the person contacted or what was said.
The only document in the record which may have been construed to say that
the agency was not subject to laws applicable to other federal agencies
is a letter dated June 8, 2005 from the agency Office of the Inspector
General which informed complainant's attorney that the agency was not
formally subject to the Privacy Act or to the Freedom of Information Act
(FOIA), but that it was providing records "as a courtesy" and "look[s] to
FOIA for guidance." No where does the letter state that the agency would
not be subject to the federal administrative EEO process. We also note
that this letter post-dates the April 18, 2005 letter from complainant's
attorney.
Therefore, after a review of the record and the briefs of both parties,
it is the decision of the Commission to affirm the agency's decision to
dismiss complainant's complaint.
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
November 21, 2006
__________________
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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347 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a42064_r.txt | 01a42064_r.txt | TXT | text/plain | 6,202 | Margaret M. Lynch v. United States Postal Service 01A42064 June 2, 2004 . Margaret M. Lynch, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. | June 2, 2004 | Appeal Number: 01A42064
Complaint Allegations:
In her complaint, complainant alleged that from July 1999 through March 2003, she was subjected to a hostile work environment. Complainant indicated that her Postmaster cut her hours as low as 10 hours per week. The record indicates that the allegedly discriminatory Postmaster was transferred to a new location away from complainant's post office in April 2003. Complainant contacted an EEO Counselor with regard to her complaint on July 22, 2003, which was beyond the 45-day time limit set by the regulations. During EEO counseling, when the EEO Counselor asked complainant why she waited so long to contact an EEO Counselor with regard to her complaint, complainant indicated that she unsuccessfully tried to resolve the subject matter informally through the Internal Investigation Team within
Case Facts:
Legal Analysis:
Upon review, the Commission finds that the agency's decision dated
January 6, 2004, dismissing complainant's complaint due to untimely
EEO Counselor contact is proper pursuant to 29 C.F.R. § 1614.107(a)(2).
In her complaint, complainant alleged that from July 1999 through March
2003, she was subjected to a hostile work environment. Complainant
indicated that her Postmaster cut her hours as low as 10 hours per week.
The record indicates that the allegedly discriminatory Postmaster was
transferred to a new location away from complainant's post office in
April 2003. Complainant contacted an EEO Counselor with regard to her
complaint on July 22, 2003, which was beyond the 45-day time limit set
by the regulations.
During EEO counseling, when the EEO Counselor asked complainant why she
waited so long to contact an EEO Counselor with regard to her complaint,
complainant indicated that she unsuccessfully tried to resolve the
subject matter informally through the Internal Investigation Team within
the agency. However, the Commission has held that the internal appeal
of an agency action does not toll the running of EEO time limitations.
See Hosford v. Veterans Administration, EEOC Request No. 05890038
(June 9, 1989). Furthermore, despite complainant's arguments, the
EEO Counselor, based on an inquiry to the Internal Investigation Team,
stated that the Internal Investigation Team denied that they informed
complainant to wait and not to file an EEO complaint. The Commission
notes that during EEO Counselor's inquiry concerning complainant's
untimely EEO Counselor contact, complainant did not argue that she
did not know about the 45-day time limit to contact an EEO Counselor.
Complainant now contends on appeal that she does not understand the
system of filing complaints and or the time limits in which they are
to be filed. However, complainant does not proffer any evidence as
to why she failed to mention the same contentions earlier during EEO
counseling nor does she proffer any evidence as to what incident triggered
her to initially contact an EEO Counselor. 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 AFFIRMED. | Margaret M. Lynch v. United States Postal Service
01A42064
June 2, 2004
.
Margaret M. Lynch,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A42064
Agency No. 4A-105-0061-03
DECISION
Upon review, the Commission finds that the agency's decision dated
January 6, 2004, dismissing complainant's complaint due to untimely
EEO Counselor contact is proper pursuant to 29 C.F.R. § 1614.107(a)(2).
In her complaint, complainant alleged that from July 1999 through March
2003, she was subjected to a hostile work environment. Complainant
indicated that her Postmaster cut her hours as low as 10 hours per week.
The record indicates that the allegedly discriminatory Postmaster was
transferred to a new location away from complainant's post office in
April 2003. Complainant contacted an EEO Counselor with regard to her
complaint on July 22, 2003, which was beyond the 45-day time limit set
by the regulations.
During EEO counseling, when the EEO Counselor asked complainant why she
waited so long to contact an EEO Counselor with regard to her complaint,
complainant indicated that she unsuccessfully tried to resolve the
subject matter informally through the Internal Investigation Team within
the agency. However, the Commission has held that the internal appeal
of an agency action does not toll the running of EEO time limitations.
See Hosford v. Veterans Administration, EEOC Request No. 05890038
(June 9, 1989). Furthermore, despite complainant's arguments, the
EEO Counselor, based on an inquiry to the Internal Investigation Team,
stated that the Internal Investigation Team denied that they informed
complainant to wait and not to file an EEO complaint. The Commission
notes that during EEO Counselor's inquiry concerning complainant's
untimely EEO Counselor contact, complainant did not argue that she
did not know about the 45-day time limit to contact an EEO Counselor.
Complainant now contends on appeal that she does not understand the
system of filing complaints and or the time limits in which they are
to be filed. However, complainant does not proffer any evidence as
to why she failed to mention the same contentions earlier during EEO
counseling nor does she proffer any evidence as to what incident triggered
her to initially contact an EEO Counselor. 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 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 2, 2004
__________________
Date
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"29 C.F.R. § 1614.604(c)",
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348 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a40344.txt | 01a40344.txt | TXT | text/plain | 7,597 | McDavid, Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency. | April 29, 2004 | Appeal Number: 01A40344
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.
On January 29, 2003, complainant initiated contact with an EEO Counselor.
Informal efforts to resolve her concerns were unsuccessful.
In her formal complaint, filed on April 23, 2003, complainant alleged
that she was subjected to discrimination on the bases of race, sex ,
and in reprisal for prior EEO activity when she was not selected for
the position of Safety and Occupational Health Manager (Ergonomist),
GS-0018-13, as advertised under Vacancy Announcement Nos. DD-2-0112
and DD-02-139.
In its final decision, dated September 22, 2003, the agency dismissed the
complaint on the grounds of untimely EEO Counselor contact. The agency
determined that complainant received a notice of non-selection for the
position advertised under Vacancy Announcement No. DD-2-0112 by letter
dated November 8, 2002; and that she received a notice of non-selection
for the position advertised under Vacancy Announcement No. DD-02-139
by letter dated November 29, 2002. Regarding Vacancy Announcement
No. DD2-02-0112, the agency informed complainant the employing office
returned the Certificate of Eligibles for this position without action.
Regarding Vacancy Announcement No. DD-22-0139, the record contains an
internal agency email exchange dated November 20, 2002, wherein an agency
EEO official stated that the pool of candidates is too small and that
the agency would re-announce in the future.
The agency determined that complainant did not contact an EEO Counselor
until January 29, 2003, beyond the 45-day time limit set by the
Regulations for both subject positions.
On appeal, complainant argues that on January 15, 2003 and January 29,
2003, she obtained additional information to support her suspicions of
discrimination, thereby rendering timely her January 29, 2003 initial
EEO Counselor contact. Specifically, complainant asserts that in
January 2003, she first received a copy of the agency November 20,
2002 email referenced above, regarding the application pool being too
small. Complainant further asserts that in January 2003, she reviewed
certificates from other announcements, wherein selections had been
made from a pool of fewer than five candidates, although the subject
positions had more than five candidates. Complainant claims that she
then determined that the agency conspired to prevent her promotion.
Complainant asserts that the confirmation of the reasoning of the filing
of the [complaint] was clarified within my [January 2003] interview.
Complainant further asserts that the EEO complaint process was initiated
from the date that she discovered and confirmed that she was the victim
of discrimination due to cancellation of job announcements due to the
application pool purportedly being too small.
The record discloses that the most recent alleged discriminatory event
occurred on November 29, 2002, but that complainant did not initiate
contact with an EEO Counselor until January 29, 2003, which is beyond the
forty-five (45) day limitation period. On appeal, complainant presented
no persuasive arguments or evidence warranting an extension of the time
limit for initiating EEO Counselor contact. The Commission determines
that complainant's arguments on appeal reflect that her initial EEO
Counselor contact occurred after she confirmed that she was the victim
of unlawful employment discrimination. Waiting until one has proof of
discrimination prior to pursuing the EEO complaint process can result
in untimely EEO contact. See Bracken v. USPS. EEOC Request No. 05900065
(April 29, 1990).
The agency's final decision dismissing complainant's complaint on the
grounds of untimely EEO Counselor contact was proper and is AFFIRMED. | Debra Levels-McDavid v. Department of Labor
01A40344
April 29, 2004
.
Debra Levels-McDavid,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 01A40344
Agency No. 03-06-093
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.
On January 29, 2003, complainant initiated contact with an EEO Counselor.
Informal efforts to resolve her concerns were unsuccessful.
In her formal complaint, filed on April 23, 2003, complainant alleged
that she was subjected to discrimination on the bases of race, sex ,
and in reprisal for prior EEO activity when she was not selected for
the position of Safety and Occupational Health Manager (Ergonomist),
GS-0018-13, as advertised under Vacancy Announcement Nos. DD-2-0112
and DD-02-139.
In its final decision, dated September 22, 2003, the agency dismissed the
complaint on the grounds of untimely EEO Counselor contact. The agency
determined that complainant received a notice of non-selection for the
position advertised under Vacancy Announcement No. DD-2-0112 by letter
dated November 8, 2002; and that she received a notice of non-selection
for the position advertised under Vacancy Announcement No. DD-02-139
by letter dated November 29, 2002. Regarding Vacancy Announcement
No. DD2-02-0112, the agency informed complainant the employing office
returned the Certificate of Eligibles for this position without action.
Regarding Vacancy Announcement No. DD-22-0139, the record contains an
internal agency email exchange dated November 20, 2002, wherein an agency
EEO official stated that the pool of candidates is too small and that
the agency would re-announce in the future.
The agency determined that complainant did not contact an EEO Counselor
until January 29, 2003, beyond the 45-day time limit set by the
Regulations for both subject positions.
On appeal, complainant argues that on January 15, 2003 and January 29,
2003, she obtained additional information to support her suspicions of
discrimination, thereby rendering timely her January 29, 2003 initial
EEO Counselor contact. Specifically, complainant asserts that in
January 2003, she first received a copy of the agency November 20,
2002 email referenced above, regarding the application pool being too
small. Complainant further asserts that in January 2003, she reviewed
certificates from other announcements, wherein selections had been
made from a pool of fewer than five candidates, although the subject
positions had more than five candidates. Complainant claims that she
then determined that the agency conspired to prevent her promotion.
Complainant asserts that the confirmation of the reasoning of the filing
of the [complaint] was clarified within my [January 2003] interview.
Complainant further asserts that the EEO complaint process was initiated
from the date that she discovered and confirmed that she was the victim
of discrimination due to cancellation of job announcements due to the
application pool purportedly being too small.
The record discloses that the most recent alleged discriminatory event
occurred on November 29, 2002, but that complainant did not initiate
contact with an EEO Counselor until January 29, 2003, which is beyond the
forty-five (45) day limitation period. On appeal, complainant presented
no persuasive arguments or evidence warranting an extension of the time
limit for initiating EEO Counselor contact. The Commission determines
that complainant's arguments on appeal reflect that her initial EEO
Counselor contact occurred after she confirmed that she was the victim
of unlawful employment discrimination. Waiting until one has proof of
discrimination prior to pursuing the EEO complaint process can result
in untimely EEO contact. See Bracken v. USPS. EEOC Request No. 05900065
(April 29, 1990).
The agency's final decision dismissing complainant's 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
April 29, 2004
__________________
Date
| [
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"29 C.F.R. § 1614.405",
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"29 C.F.R. § 1614.604(c)",
"42 U.S.C. § 2000e",
"29 U.S.C. §§ 791"
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0.001938141... |
349 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A10070.txt | 01A10070.txt | TXT | text/plain | 6,174 | Sean S. Darling v. United States Postal Service 01A100700 March 30, 2001 . Sean S. Darling, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency. | March 30, 2001 | Appeal Number: 01A10070
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 by letter dated July 4, 1999,
and postmarked July 13, 1999, complainant contacted the EEO office and
asked to file a complaint of discrimination for a matter that occurred
in May 1999.
Complainant subsequently filed a formal complaint claiming that he had
been discriminated against on the basis of religion when on May 14,
1999, and May 21, 1999, the Customer Service Manager made derogatory
religious remarks toward him, possibly explaining why she had been
abusive towards him.
The agency issued a final decision (FAD) dismissing the complaint for
untimely EEO Counselor contact. Complainant appealed the FAD claiming
that he had sent a letter to the agency's EEO office on June 26,
1999, thereby rendering timely his EEO contact relating to the May
1999 incidents. The Commission issued a decision on June 20, 2000,
vacated the FAD and ordered a supplemental investigation to determine
if complainant had contacted the EEO office by mail, on June 26, 1999.
Darling v. USPS, EEOC Appeal No. 01A00924 (June 20, 2000).
On remand, the Acting EEO Counselor/Investigator issued an affidavit
dated August 1, 2000, stating that the sole document received in the
EEO office from complainant was the July 4, 1999 letter noted above.
The EEO Counselor further stated that this letter was postmarked July 13,
1999, and received by the office on July 15, 1999. The EEO Counselor
also stated that the office records showed that complainant had not made
any telephone contact with the EEO office.
On September 14, 2000, the agency issued a new FAD once again dismissing
the complaint for untimely EEO Counselor contact.
A review of the record shows that although the alleged discriminatory
events occurred on May 14, 1999, and May 21, 1999, complainant did
not initiate contact with an EEO Counselor until July 13, 1999, which
is beyond the forty-five (45) day limitation period. 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. | Sean S. Darling v. United States Postal Service
01A100700
March 30, 2001
.
Sean S. Darling,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A10070
Agency No. 4-D-250-0117-99
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 by letter dated July 4, 1999,
and postmarked July 13, 1999, complainant contacted the EEO office and
asked to file a complaint of discrimination for a matter that occurred
in May 1999.
Complainant subsequently filed a formal complaint claiming that he had
been discriminated against on the basis of religion when on May 14,
1999, and May 21, 1999, the Customer Service Manager made derogatory
religious remarks toward him, possibly explaining why she had been
abusive towards him.
The agency issued a final decision (FAD) dismissing the complaint for
untimely EEO Counselor contact. Complainant appealed the FAD claiming
that he had sent a letter to the agency's EEO office on June 26,
1999, thereby rendering timely his EEO contact relating to the May
1999 incidents. The Commission issued a decision on June 20, 2000,
vacated the FAD and ordered a supplemental investigation to determine
if complainant had contacted the EEO office by mail, on June 26, 1999.
Darling v. USPS, EEOC Appeal No. 01A00924 (June 20, 2000).
On remand, the Acting EEO Counselor/Investigator issued an affidavit
dated August 1, 2000, stating that the sole document received in the
EEO office from complainant was the July 4, 1999 letter noted above.
The EEO Counselor further stated that this letter was postmarked July 13,
1999, and received by the office on July 15, 1999. The EEO Counselor
also stated that the office records showed that complainant had not made
any telephone contact with the EEO office.
On September 14, 2000, the agency issued a new FAD once again dismissing
the complaint for untimely EEO Counselor contact.
A review of the record shows that although the alleged discriminatory
events occurred on May 14, 1999, and May 21, 1999, complainant did
not initiate contact with an EEO Counselor until July 13, 1999, which
is beyond the forty-five (45) day limitation period. 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
March 30, 2001
__________________
Date
| [
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350 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120080750.txt | 0120080750.txt | TXT | text/plain | 27,908 | Paula Rathers, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (Bureau of Engraving and Printing), Agency. | December 1, 2007 | Appeal Number: 0120080750
Background:
At the time of events giving rise to this complaint, complainant worked
as an Equal Employment Opportunity (EEO) Assistant for the Bureau of
Engraving and Printing in Fort Worth, Texas.
On November 7, 2005, complainant filed an EEO complaint alleging that
she was discriminated against on the basis of sex (female) when she was
sexually harassed by a co-worker on March 1, 2004.1
In an investigative affidavit, complainant stated that on March 1,
2004, an employee who worked in a different area of complainant's office
approached her while she was at a water fountain and told her that he
wanted to talk to her. Complainant stated that she and the co-worker
went to her office, and the co-worker commented that complainant is
"such a beautiful woman," asked her for a hug, and put both of his hands
on her breasts. IF, Ex. 4 at p. 3. Complainant also stated that when
she stepped back to avoid further contact with the co-worker, she fell
into a chair, and the co-worker ran his hands down her body to her hips.
Complainant stated that the co-worker left her office, and she immediately
told a police inspector about the incident. Complainant stated that
on March 2, 2004, she informed her second-level supervisor about the
incident, and the supervisor advised her to inform the Office of Security
about the incident.
Complaint further stated that on or about March 3, 2004, she informed her
first-level supervisor and a co-worker who is an EEO counselor about the
incident. Complainant stated that the first-level supervisor immediately
issued a letter to the harasser directing him to stay a certain number
of feet away from complainant.
In an investigative affidavit, the Chief of Equal Employment Opportunity
and the Resolution Center, complainant's second-line supervisor, stated
when complainant called him on the telephone and told him that she had
been fondled by someone, he asked complainant if she had reported the
matter to security, and complainant replied that she had not reported the
incident. The supervisor further stated that he instructed complainant
to immediately report the matter to the Office of Security, and the Office
of Security subsequently conducted an investigation of the incident.
A Human Resources Specialist stated that he received the case involving
complainant's allegations on or about August 26, 2004. He stated that
on October 25, 2004, the agency issued the harasser a proposed three-day
suspension, and on December 3, 2004, issued the harasser an official
reprimand, which would remain in his Official Personnel Folder for one
year.
The Manager of Mechanical Exam Operations and the harasser's second-line
supervisor stated that a letter was issued to the harasser on March 3,
2004, in which the harasser was ordered to stay away from the EEO office
and complainant. He further stated that in order to visit the EEO office,
the harasser had to make an appointment through complainant's supervisor,
but the harasser usually worked the midnight shift. The Manager further
stated that the Office of Security conducted an investigation of the
matter, and based on his review of the investigation, he issued the
harasser an official reprimand.
The Manager of the Security Division stated that after complainant
informed the agency of the harassment, the agency issued the harasser
a letter directing him not to go to the EEO area and not to contact
any EEO employee other than complainant's first-line supervisor.
She stated that she also initiated an investigation into the incident
by appointing the Security Specialist in the Personnel Security Branch
and an investigator to conduct the investigation. She stated that the
investigation began immediately, and complainant was interviewed on March
3, 2004. She further stated that after the investigation was completed,
she reviewed the investigation and forwarded it to the Labor Relations
Office. The Manager stated that on September 10, 2004, the Security
Division received a request for additional information from the Labor
Relations Specialist, a supplemental investigation was conducted, and
a supplemental report was forwarded to the Labor Relations Office on
September 15, 2004.
A female co-worker stated that complainant shared the details of the
harasser's conduct with her. The co-worker stated that she advised
complainant to report the incident and told complainant about her
encounter with the harasser. The co-worker stated that one day when she
was smoking a cigarette outside of the office, the harasser approached
her and told her that he would pin a badge on her, and as he pinned the
badge, stated, "All I wanted to do is touch your breast." IF, Ex. 13
at p. 3. The co-worker stated that she grabbed her badge, walked away,
but "did nothing" about the incident. Id.
In an affidavit, the accused harasser denied telling complainant that
she was a beautiful woman and maintained that complainant extended her
arms to him to wish him a happy birthday. The accused harasser further
stated that on March 4, 2004, the day shift supervisor called him into his
office and advised him what complainant had alleged. He further stated
that complainant's first-line supervisor issued him a letter ordering him
not to come around complainant's side of the building without informing
the supervisor. He also stated that his second-line supervisor issued
him a letter of reprimand because of complainant's claims.
The record contains a copy of a memorandum to the harasser dated March 3,
2004, in which the agency instructed the harasser to not come into the
area of the EEO Office unless he previously arranged for an appointment
by contacting complainant's supervisor. The letter further stated that
the harasser must not contact any EEO employee without prior approval
from complainant's supervisor.
At the conclusion of the investigation, complainant was provided 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 November 2, 2006, the agency moved for
the dismissal of complainant's complaint on the grounds that it was
initiated by untimely EEO counselor contact, and alternatively moved for
a decision without a hearing on the merits of complainant's complaint.
In response, complainant argued that she contacted an EEO counselor in
a timely manner when she informed her co-worker who is an EEO counselor
of the harassment on March 4, 2004 and reported the harassment to her
supervisor on March 2, 2004. Complainant further argued that, viewed in
the light most favorable to complainant, the alleged harasser's conduct
was sufficiently severe to constitute harassment. Complainant also
stated that although the agency instructed the alleged harasser to avoid
complainant's work area and reprimanded him, there was a genuine issue of
material fact because complainant demanded additional responses from the
agency, including installing a panic button at her desk; compensatory
damages and attorney's fees; promoting her to grade 12; and, training
supervisors about sexual harassment prevention.
In a decision dated October 23, 2007, the AJ dismissed complainant's
complaint on the grounds that it was initiated by untimely EEO counselor
contact. The AJ concluded that although complainant informed EEO officials
of the alleged harassment in March 2004, she did not make an attempt to
file a claim until after the 45-day time limit. The AJ further found
that although the alleged harassing actions were sufficiently severe to
constitute harassment, complainant failed to prove that the agency should
be held liable because the agency took prompt and effective actions to
correct the harassment. The agency subsequently issued a final order
adopting the AJ's findings.
CONTENTIONS ON APPEAL
On appeal, complainant reiterates the aforementioned arguments that were
raised in her response to the agency's motion for a decision without
a hearing/dismissal. The agency requests that we affirm its final order.
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.
In this case, the AJ dismissed complainant's complaint on the basis that
it was initiated by untimely EEO counselor contact. Complainant maintains
that she initiated EEO counselor contact on March 2, 2004, when she
reported the harassment to her second-line supervisor who is the Chief
Equal Employment Opportunity and Alternative Dispute Resolution, and on
March 4, 2004, when she informed a co-worker who is an EEO counselor of
the harassment.
The record contains an email dated November 15, 2005 to the Chief of
Equal Employment Opportunity and the Resolution Center from the EEO
counselor who discussed the harassment with complainant. In the email,
the counselor stated that complainant informed him on March 4, 2004,
that a co-worker had sexually harassed her on March 2, 2004 and that
after contacting the Chief of Equal Employment Opportunity and the
Resolution Center, the Manager referred her to the Officer of Security
for the processing of her sexual harassment complaint. The counselor
further stated that he was not involved in the processing of complainant's
complaint because the Security Office processed complainant's complaint.
He further stated that on June 17, 2005, complainant contacted him
by email and requested to file a sexual harassment complaint, and he
contacted complainant by telephone on June 20, 2005 to schedule an
appointment for her to see him the next day. The counselor further
stated that complainant indicated that she was filing a complaint with
the Security Division based on the EEO Chief's opinion that it was better
to file her complaint with the Security Division.
The counselor also stated that on July 11, 2005, complainant told
him that she wanted to wait to file a complaint because she wanted to
request information from the Office of Security through the Freedom of
Information Act. He stated that complainant received an answer to her
request in October 2005 and filed her complaint on November 3, 2005.
The record also contains a statement from the EEO counselor stamped
December 30, 2005, in which the counselor stated that complainant talked
to him about the sexual harassment within 45 days of the incident
and indicated that the Chief of Equal Employment Opportunity and the
Resolution Center had told her to file her sexual harassment complaint
with the Security Office. The counselor further stated that complainant
indicated that she was filing with the Security Office based on the
Chief of Equal Employment Opportunity and the Resolution Center's
instructions.
Upon review, we note that 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). EEO Counselor contact, for
purposes of tolling the time limit, requires at a minimum that the
complainant intends to pursue EEO counseling when she initiates EEO
contact. See Snyder v. Department of Defense, EEOC Request No. 05901061
(November 1, 1990); Menard v. Department of the Navy, EEOC Appeal
No. 01990626 (January 5, 2001), request for reconsideration denied,
EEOC Request No. 05A10279 (May 9, 2001).
In this case, complainant reported the alleged harassment to the Chief of
EEO on March 2, 2004. Additionally, complainant reported the harassment
to an EEO counselor on or about March 4, 2004. Nonetheless, both
complainant and the EEO counselor indicate that complainant initially
sought to have her sexual harassment complainant processed through the
Security Office because the Chief of EEO assured her that this was
the proper way to handle her complaint. Moreover, the Chief of EEO
acknowledged that he ordered complainant to pursue her sexual harassment
with the Security Office, but there is no indication that he apprized
complainant of her right to also pursue her claim through the EEO process.
In light of the EEO Chief's supervisory directive to complainant,
we find that it was reasonable for complainant to wait until June 17,
2005 to exhibit an intent to begin the EEO process. Consequently, we
find that the applicable time limits should have been waived in this case
and determine that the AJ incorrectly dismissed complainant's complaint
on the basis that it was initiated by untimely EEO counselor contact.
Sexual Harassment/ Hostile Work Environment
Regarding the merits of this case, in rendering this appellate decision we
must scrutinize the AJ's legal and factual | Paula Rathers,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury
(Bureau of Engraving and Printing),
Agency.
Appeal No. 0120080750
Hearing No. 450-2006-00239X
Agency No. BEP-06-0489-F
DECISION
On December 1, 2007, complainant filed an appeal from the agency's
November 1, 2007 final order 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. The appeal is deemed timely and is accepted
pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the
Commission MODIFIES the agency's final order.
ISSUES PRESENTED
1. Whether complainant was subjected to sexual harassment
by a co-worker; and
2. Whether the agency is liable for the co-worker's
harassment of complainant.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as an Equal Employment Opportunity (EEO) Assistant for the Bureau of
Engraving and Printing in Fort Worth, Texas.
On November 7, 2005, complainant filed an EEO complaint alleging that
she was discriminated against on the basis of sex (female) when she was
sexually harassed by a co-worker on March 1, 2004.1
In an investigative affidavit, complainant stated that on March 1,
2004, an employee who worked in a different area of complainant's office
approached her while she was at a water fountain and told her that he
wanted to talk to her. Complainant stated that she and the co-worker
went to her office, and the co-worker commented that complainant is
"such a beautiful woman," asked her for a hug, and put both of his hands
on her breasts. IF, Ex. 4 at p. 3. Complainant also stated that when
she stepped back to avoid further contact with the co-worker, she fell
into a chair, and the co-worker ran his hands down her body to her hips.
Complainant stated that the co-worker left her office, and she immediately
told a police inspector about the incident. Complainant stated that
on March 2, 2004, she informed her second-level supervisor about the
incident, and the supervisor advised her to inform the Office of Security
about the incident.
Complaint further stated that on or about March 3, 2004, she informed her
first-level supervisor and a co-worker who is an EEO counselor about the
incident. Complainant stated that the first-level supervisor immediately
issued a letter to the harasser directing him to stay a certain number
of feet away from complainant.
In an investigative affidavit, the Chief of Equal Employment Opportunity
and the Resolution Center, complainant's second-line supervisor, stated
when complainant called him on the telephone and told him that she had
been fondled by someone, he asked complainant if she had reported the
matter to security, and complainant replied that she had not reported the
incident. The supervisor further stated that he instructed complainant
to immediately report the matter to the Office of Security, and the Office
of Security subsequently conducted an investigation of the incident.
A Human Resources Specialist stated that he received the case involving
complainant's allegations on or about August 26, 2004. He stated that
on October 25, 2004, the agency issued the harasser a proposed three-day
suspension, and on December 3, 2004, issued the harasser an official
reprimand, which would remain in his Official Personnel Folder for one
year.
The Manager of Mechanical Exam Operations and the harasser's second-line
supervisor stated that a letter was issued to the harasser on March 3,
2004, in which the harasser was ordered to stay away from the EEO office
and complainant. He further stated that in order to visit the EEO office,
the harasser had to make an appointment through complainant's supervisor,
but the harasser usually worked the midnight shift. The Manager further
stated that the Office of Security conducted an investigation of the
matter, and based on his review of the investigation, he issued the
harasser an official reprimand.
The Manager of the Security Division stated that after complainant
informed the agency of the harassment, the agency issued the harasser
a letter directing him not to go to the EEO area and not to contact
any EEO employee other than complainant's first-line supervisor.
She stated that she also initiated an investigation into the incident
by appointing the Security Specialist in the Personnel Security Branch
and an investigator to conduct the investigation. She stated that the
investigation began immediately, and complainant was interviewed on March
3, 2004. She further stated that after the investigation was completed,
she reviewed the investigation and forwarded it to the Labor Relations
Office. The Manager stated that on September 10, 2004, the Security
Division received a request for additional information from the Labor
Relations Specialist, a supplemental investigation was conducted, and
a supplemental report was forwarded to the Labor Relations Office on
September 15, 2004.
A female co-worker stated that complainant shared the details of the
harasser's conduct with her. The co-worker stated that she advised
complainant to report the incident and told complainant about her
encounter with the harasser. The co-worker stated that one day when she
was smoking a cigarette outside of the office, the harasser approached
her and told her that he would pin a badge on her, and as he pinned the
badge, stated, "All I wanted to do is touch your breast." IF, Ex. 13
at p. 3. The co-worker stated that she grabbed her badge, walked away,
but "did nothing" about the incident. Id.
In an affidavit, the accused harasser denied telling complainant that
she was a beautiful woman and maintained that complainant extended her
arms to him to wish him a happy birthday. The accused harasser further
stated that on March 4, 2004, the day shift supervisor called him into his
office and advised him what complainant had alleged. He further stated
that complainant's first-line supervisor issued him a letter ordering him
not to come around complainant's side of the building without informing
the supervisor. He also stated that his second-line supervisor issued
him a letter of reprimand because of complainant's claims.
The record contains a copy of a memorandum to the harasser dated March 3,
2004, in which the agency instructed the harasser to not come into the
area of the EEO Office unless he previously arranged for an appointment
by contacting complainant's supervisor. The letter further stated that
the harasser must not contact any EEO employee without prior approval
from complainant's supervisor.
At the conclusion of the investigation, complainant was provided 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 November 2, 2006, the agency moved for
the dismissal of complainant's complaint on the grounds that it was
initiated by untimely EEO counselor contact, and alternatively moved for
a decision without a hearing on the merits of complainant's complaint.
In response, complainant argued that she contacted an EEO counselor in
a timely manner when she informed her co-worker who is an EEO counselor
of the harassment on March 4, 2004 and reported the harassment to her
supervisor on March 2, 2004. Complainant further argued that, viewed in
the light most favorable to complainant, the alleged harasser's conduct
was sufficiently severe to constitute harassment. Complainant also
stated that although the agency instructed the alleged harasser to avoid
complainant's work area and reprimanded him, there was a genuine issue of
material fact because complainant demanded additional responses from the
agency, including installing a panic button at her desk; compensatory
damages and attorney's fees; promoting her to grade 12; and, training
supervisors about sexual harassment prevention.
In a decision dated October 23, 2007, the AJ dismissed complainant's
complaint on the grounds that it was initiated by untimely EEO counselor
contact. The AJ concluded that although complainant informed EEO officials
of the alleged harassment in March 2004, she did not make an attempt to
file a claim until after the 45-day time limit. The AJ further found
that although the alleged harassing actions were sufficiently severe to
constitute harassment, complainant failed to prove that the agency should
be held liable because the agency took prompt and effective actions to
correct the harassment. The agency subsequently issued a final order
adopting the AJ's findings.
CONTENTIONS ON APPEAL
On appeal, complainant reiterates the aforementioned arguments that were
raised in her response to the agency's motion for a decision without
a hearing/dismissal. The agency requests that we affirm its final order.
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 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.
In this case, the AJ dismissed complainant's complaint on the basis that
it was initiated by untimely EEO counselor contact. Complainant maintains
that she initiated EEO counselor contact on March 2, 2004, when she
reported the harassment to her second-line supervisor who is the Chief
Equal Employment Opportunity and Alternative Dispute Resolution, and on
March 4, 2004, when she informed a co-worker who is an EEO counselor of
the harassment.
The record contains an email dated November 15, 2005 to the Chief of
Equal Employment Opportunity and the Resolution Center from the EEO
counselor who discussed the harassment with complainant. In the email,
the counselor stated that complainant informed him on March 4, 2004,
that a co-worker had sexually harassed her on March 2, 2004 and that
after contacting the Chief of Equal Employment Opportunity and the
Resolution Center, the Manager referred her to the Officer of Security
for the processing of her sexual harassment complaint. The counselor
further stated that he was not involved in the processing of complainant's
complaint because the Security Office processed complainant's complaint.
He further stated that on June 17, 2005, complainant contacted him
by email and requested to file a sexual harassment complaint, and he
contacted complainant by telephone on June 20, 2005 to schedule an
appointment for her to see him the next day. The counselor further
stated that complainant indicated that she was filing a complaint with
the Security Division based on the EEO Chief's opinion that it was better
to file her complaint with the Security Division.
The counselor also stated that on July 11, 2005, complainant told
him that she wanted to wait to file a complaint because she wanted to
request information from the Office of Security through the Freedom of
Information Act. He stated that complainant received an answer to her
request in October 2005 and filed her complaint on November 3, 2005.
The record also contains a statement from the EEO counselor stamped
December 30, 2005, in which the counselor stated that complainant talked
to him about the sexual harassment within 45 days of the incident
and indicated that the Chief of Equal Employment Opportunity and the
Resolution Center had told her to file her sexual harassment complaint
with the Security Office. The counselor further stated that complainant
indicated that she was filing with the Security Office based on the
Chief of Equal Employment Opportunity and the Resolution Center's
instructions.
Upon review, we note that 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). EEO Counselor contact, for
purposes of tolling the time limit, requires at a minimum that the
complainant intends to pursue EEO counseling when she initiates EEO
contact. See Snyder v. Department of Defense, EEOC Request No. 05901061
(November 1, 1990); Menard v. Department of the Navy, EEOC Appeal
No. 01990626 (January 5, 2001), request for reconsideration denied,
EEOC Request No. 05A10279 (May 9, 2001).
In this case, complainant reported the alleged harassment to the Chief of
EEO on March 2, 2004. Additionally, complainant reported the harassment
to an EEO counselor on or about March 4, 2004. Nonetheless, both
complainant and the EEO counselor indicate that complainant initially
sought to have her sexual harassment complainant processed through the
Security Office because the Chief of EEO assured her that this was
the proper way to handle her complaint. Moreover, the Chief of EEO
acknowledged that he ordered complainant to pursue her sexual harassment
with the Security Office, but there is no indication that he apprized
complainant of her right to also pursue her claim through the EEO process.
In light of the EEO Chief's supervisory directive to complainant,
we find that it was reasonable for complainant to wait until June 17,
2005 to exhibit an intent to begin the EEO process. Consequently, we
find that the applicable time limits should have been waived in this case
and determine that the AJ incorrectly dismissed complainant's complaint
on the basis that it was initiated by untimely EEO counselor contact.
Sexual Harassment/ Hostile Work Environment
Regarding the merits of this 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 EEOC Management Directive 110,
Chapter 9, § VI.B. (November 9, 1999) (providing that an administrative
judge's "decision to issue a decision without a hearing pursuant to
[29 C.F.R. § 1614.109(g)] will 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 decision based on the Commission's own
assessment of the record and its interpretation of the law").
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she 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. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
We find that the AJ properly issued a decision without a hearing because
complainant failed to show that a genuine issue of material fact exists.
Complainant alleged that a co-worker sexually harassed her on March
1, 2004. It is well-settled that sexual harassment in the workplace
constitutes an actionable form of sex discrimination under Title VII.
Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). In order to establish
a prima facie case of sexual harassment, the complainant must prove,
by a preponderance of the evidence, the existence of five elements: (1)
that she is a member of a statutorily protected class; (2) that she was
subjected to unwelcome conduct related to her sex; (3) that the harassment
complained of was based on her sex; (4) that the harassment had the
purpose or effect of unreasonably interfering with her work performance
and/or creating an intimidating, hostile, or offensive work environment;
and (5) that there is a basis for imputing liability to the employer.
See McCleod v. Social Security Administration, EEOC Appeal No. 01963810
(August 5, 1999)( citing Hanson v. City of Dundee, 682 F.2d 987, 903
(11th Cir. 1982).
Here, complainant, a female, is a member of a statutorily protected class.
Further, assuming complainant's account of the events of March 1, 2004
to be true, we also find that complainant was subjected to unwelcome
conduct, as reflected by complainant's attempts to escape the harasser
and her immediate reporting of the incident to several agency officials.
We further determine that the alleged incidents occurred because of
complainant's sex because the evidence indicates that the only other
employee who was subjected to similar harassing conduct by the harassing
co-worker was also female.
Turning to the fourth prong of the prima facie case, we note that whether
or not an objectively hostile or abusive work environment exists is based
on whether a reasonable person in complainant's circumstances would have
found the alleged behavior to be hostile or abusive. The incidents must
have been "sufficiently severe and pervasive to alter the conditions of
complainant's employment and create an abusive working environment."
Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); see also
Oncale v. Sundowner Offshore Services., Inc., 23 U.S. 75 (1998). To
ascertain this, we look at the totality of the circumstances, including
the frequency of the discriminatory conduct; its severity; whether it was
physically threatening or humiliating, or a mere offensive utterance;
whether it was hostile or patently offensive; whether the alleged
harasser was a co-worker or a supervisor. See Harris, 510 U.S. 17, 23
(1993); see also Policy Guidance on Current Issues of Sexual Harassment,
EEOC Notice No. N-915-050 (Mar. 19, 1990).
Under the standard that 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, we determine that the
harasser's suggestive comments toward complainant, the touching of
complainant's breasts, and the running of the harasser's hands down
complainant's body were "sufficiently severe [and] pervasive to alter
the conditions of [appellant's] employment and create an abusive working
environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
Thus, for purposes of our analysis, the complainant established that
the alleged incidents created a hostile work environment.
The fifth prong of the prima facie case requires a basis for imputing
liability to the employer. Where, as here, the harassment is perpetrated
by a co-worker, an employer is liable if it knew or should have known of
the misconduct and failed to take immediate and appropriate corrective
action. Policy Guidance on Current Issues of Sexual Harassment, EEOC
Notice No. N-915-050 at 29-30 (March 19, 1990); Owens v. Department of
Transportation, EEOC Request No. 05940824 (September 5, 1996).
Complainant notified several management officials of the harassment on
March 1, 2, and 3, 2004. In a letter dated March 3, 2004, the agency
ordered the harasser to stay away from complainant's office and not
contact any EEO employees except complainant's supervisor. Additionally,
the agency investigated complainant's claims and issued the harasser
an official reprimand. In her affidavit, complainant stated that the
harasser has not tried to contact her since he received the letter,
which indicates that the agency's response was prompt, appropriate,
and effective. IF, Ex. 4 at p. 4. Further, there is no indication in
the record that the co-worker engaged in any harassing conduct toward
complainant before March 1, 2004, and there no evidence that the agency
was aware of the harasser's propensity to engage in sexually harassing
conduct toward anyone before March 1, 2004.
On appeal, complainant maintains that the harasser was "often and
suspiciously out of place at the Product Monitoring Station" and made
unsolicited telephonic contacts to employees before March 1, 2004.
However, a review of the record reveals that while employees reported
that the harassing co-worker sporadically looked through the window
of the Product Monitoring Station, knocked on its door, called for
employees to open the door, and engaged in general conversation with
employees, these were not actions that should have placed the agency
on alert that the co-worker had a propensity to engage in sexually
harassing conduct. Under these circumstances, we find that no reasonable
fact-finder could conclude that the agency failed to take immediate and
appropriate corrective action or should have known of the harasser's
sexual misconduct before March 1, 2004. Therefore, we find that the AJ
properly found that the agency was not liable for the alleged harassment.
To the extent that complainant contends that the agency should nonetheless
be ordered to install a panic button at her desk; pay her compensatory
damages and attorney's fees; and, promote her to grade 12, we decline
to order these remedies because complainant is not a prevailing party
on her complaint.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we reverse the
agency's dismissal of complainant's complaint on the basis of untimely
EEO counselor contact. The Commission affirms the final order finding
that the agency was not liable for alleged sexual harassment for the
reasons set forth in this decision.
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
______8/12/09____________
Date
1 We note that complainant withdrew reprisal for a basis for her
complaint. IF, Ex. 4 at p. 5.
??
??
??
??
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351 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120081359.txt | 0120081359.txt | TXT | text/plain | 7,495 | Maria V. Carmona, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency. | December 21, 2007 | Appeal Number: 0120081359
Complaint Allegations:
In her complaint, complainant alleged that she was subjected to discrimination on the bases of national origin (Hispanic), sex (female), age (54), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when on July 31, 2007, she was issued a downgraded performance appraisal.
Case Facts:
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 21, 2007, 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. and the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. § 621 et seq. In her complaint, complainant alleged that she was
subjected to discrimination on the bases of national origin (Hispanic),
sex (female), age (54), and reprisal for prior protected EEO activity
under Title VII of the Civil Rights Act of 1964 when on July 31, 2007,
she was issued a downgraded performance appraisal.
The agency dismissed the instant complaint in accordance with EEOC
Regulation 29 C.F.R. § 1614.107(a)(2) on the grounds that complainant
failed to contact an EEO Counselor regarding her concerns. The record
indicates that complainant sought EEO counseling on September 5, 2007.
An EEO Counselor was assigned to complainant's case and attempted
unsuccessfully to contact complainant regarding her concerns from
September 5, 2007 through October 3, 2007. The record indicates that
although complainant initiated EEO counseling, she and her representative
failed to respond to numerous requests by telephone and in writing from
the EEO counselor to meet with complainant to clarify the issues and to
attempt informal resolution of the matter. Instead, on November 14, 2007,
complainant hand delivered a formal complaint to the agency regarding her
claims of discrimination. The record further indicates that attached
to complainant's formal complaint was a "report of the EEO Counselor."
However, because the agency's EEO counselor never met with complainant to
prepare such a report, the agency assumes that the report was prepared
by complainant. Nonetheless, the agency determined that complainant's
complaint must be dismissed because she failed to bring her concerns to
the attention of an EEO Counselor in accordance with
Legal Analysis:
EEOC Regulations.
EEOC Regulation 29 C.F.R. § 1614.105(a) requires that aggrieved persons
who believe they have been discriminated against must consult an EEO
Counselor prior to filing a complaint in order to try to informally
resolve the matter.
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.
Agencies are required to dismiss complaints raising claims not brought
to the attention of an EEO Counselor and not like or related to a matter
that had been brought to the attention of an EEO Counselor. 29 C.F.R. §
1614.107(a)(2). Here, the Commission finds that the agency's dismissal of
the instant matter was proper. In reaching this | Maria V. Carmona,
Complainant,
v.
Henry M. Paulson, Jr.,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120081359
Agency No. OIG080083F
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 21, 2007, 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. and the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. § 621 et seq. In her complaint, complainant alleged that she was
subjected to discrimination on the bases of national origin (Hispanic),
sex (female), age (54), and reprisal for prior protected EEO activity
under Title VII of the Civil Rights Act of 1964 when on July 31, 2007,
she was issued a downgraded performance appraisal.
The agency dismissed the instant complaint in accordance with EEOC
Regulation 29 C.F.R. § 1614.107(a)(2) on the grounds that complainant
failed to contact an EEO Counselor regarding her concerns. The record
indicates that complainant sought EEO counseling on September 5, 2007.
An EEO Counselor was assigned to complainant's case and attempted
unsuccessfully to contact complainant regarding her concerns from
September 5, 2007 through October 3, 2007. The record indicates that
although complainant initiated EEO counseling, she and her representative
failed to respond to numerous requests by telephone and in writing from
the EEO counselor to meet with complainant to clarify the issues and to
attempt informal resolution of the matter. Instead, on November 14, 2007,
complainant hand delivered a formal complaint to the agency regarding her
claims of discrimination. The record further indicates that attached
to complainant's formal complaint was a "report of the EEO Counselor."
However, because the agency's EEO counselor never met with complainant to
prepare such a report, the agency assumes that the report was prepared
by complainant. Nonetheless, the agency determined that complainant's
complaint must be dismissed because she failed to bring her concerns to
the attention of an EEO Counselor in accordance with EEOC Regulations.
EEOC Regulation 29 C.F.R. § 1614.105(a) requires that aggrieved persons
who believe they have been discriminated against must consult an EEO
Counselor prior to filing a complaint in order to try to informally
resolve the matter.
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.
Agencies are required to dismiss complaints raising claims not brought
to the attention of an EEO Counselor and not like or related to a matter
that had been brought to the attention of an EEO Counselor. 29 C.F.R. §
1614.107(a)(2). Here, the Commission finds that the agency's dismissal of
the instant matter was proper. In reaching this conclusion, the Commission
notes that complainant has previously filed EEO complaints and was well
aware of her obligation to contact an EEO Counselor prior to filing a
written complaint. The Commission has held that a complainant has actual
knowledge of the obligation to engage in pre-complaint counseling if the
complainant has previously engaged in the EEO process. See Rethaber
v. Department of Veterans Affairs, EEOC Appeal No. 01A50468 (February
10, 2005).
Accordingly, the agency's decision is affirmed as set forth herein.
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 (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 (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
May 1, 2008
__________________
Date
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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352 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120130808.txt | 0120130808.txt | TXT | text/plain | 8,636 | James F. Gibson, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency. | November 9, 2012 | Appeal Number: 0120130808
Background:
At the time of events giving rise to this complaint, Complainant was a former employee of the Agency's Fresno Flight Standards District Office in Fresno, California. On October 16, 2012, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the basis of reprisal for prior protected EEO activity under Title VII when (1) he was terminated from the Agency on April 5, 1991, and (2) a former manager made erroneous statements regarding Complainant's character during his employment with the Agency, which Complainant believes has made it hard for him to find another job. The Agency dismissed the compliant, pursuant to 29 C.F.R. § 1614.107(a)(1), on the grounds that the instant complaint raised the same issues stated in Complainant's Complaint No. 2012-24370-FAA-06, which was filed on April 2, 2012.
CONTENTIONS ON APPEAL
On appeal, Complainant's main argument is that the Agency mis-framed his claim. Complainant contends that he is alleging that he was discriminated against when his former supervisor made negative comments to the EEO counselor in DOT Complaint No. 2012-24370-FAA-06, on May 12, 2012, which he maintains is a different claim from that raised in the April 2012 complaint. The Agency requests that we affirm its dismissal of the complaint.
Legal Analysis:
Upon review, the Commission finds that Complainant's complaint was properly dismissed.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a former employee of the Agency's Fresno Flight Standards District Office in Fresno, California. On October 16, 2012, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the basis of reprisal for prior protected EEO activity under Title VII when (1) he was terminated from the Agency on April 5, 1991, and (2) a former manager made erroneous statements regarding Complainant's character during his employment with the Agency, which Complainant believes has made it hard for him to find another job. The Agency dismissed the compliant, pursuant to 29 C.F.R. § 1614.107(a)(1), on the grounds that the instant complaint raised the same issues stated in Complainant's Complaint No. 2012-24370-FAA-06, which was filed on April 2, 2012.
CONTENTIONS ON APPEAL
On appeal, Complainant's main argument is that the Agency mis-framed his claim. Complainant contends that he is alleging that he was discriminated against when his former supervisor made negative comments to the EEO counselor in DOT Complaint No. 2012-24370-FAA-06, on May 12, 2012, which he maintains is a different claim from that raised in the April 2012 complaint. The Agency requests that we affirm its dismissal of the complaint.
ANALYSIS AND FINDINGS
With respect to claim (1), the record indicates that Complainant did include this issue in his Complaint No. 2012-24370-FAA-06. The Agency dismissed claim (1) in a final decision dated April 25, 2012. On October 16, 2012, the Commission, among other things, issued a decision in Gibson v. Department of Transportation, EEOC Appeal No. 0120122468, affirming the Agency's dismissal of this claim for untimeliness. Subsequently, Complainant's request for reconsideration was denied in Gibson v. Department of Transportation, EEOC Request No. 0520130073 (March 22, 2013). Therefore, we affirm the dismissal of claim (1) on the grounds that it states the same claim that has already been addressed by the Commission, pursuant to 29 C.F.R. § 1614.107(a)(1).
With respect to claim (2), the Commission has held that to allow the processing of a complaint regarding the participation of employees in the investigation of another EEO complaint by a co-worker or other agency employee would have a chilling effect on the processing of EEO complaints. See Calloway v. Dep't of the Army, EEOC Appeal No. 01943406 (July 15, 1994).
Final Decision:
Accordingly, statements made to an EEO Counselor in a separate EEO complaint cannot be the basis for a claim in another EEO complaint. In this case, based on Complainant's statements on appeal, we find that Complainant is alleging that, on May 12, 2012, his former supervisor made negative comments regarding Complainant's character and performance while talking to an EEO counselor about another EEO complaint. We find that this claim was properly dismissed, albeit on the grounds that it failed to state a claim, i.e., that to otherwise permit EEO complaints regarding statements made in the EEO process would have a chilling effect on the EEO process. Further, complaints of discrimination must 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. 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 limitation period is triggered under the EEOC Regulations. See 29 C.F.R. § 1614.105(a)(2). Thus, the limitations period is not triggered until a complainant reasonably should have suspected discrimination, but before all the facts that would support a charge of discrimination have become apparent. In this case, Complainant argues that he did not know the nature of the statements until the former supervisor made the comments to the EEO Counselor in the prior EEO matter. We find, however that Complainant states on appeal that he had reasonable suspicion that his former supervisor made negative comments regarding his prior employment to prospective employers as far back as 2007. Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. | James F. Gibson,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120130808
Agency No. 2012-24670-FAA-06
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated November 9, 2012, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a former employee of the Agency's Fresno Flight Standards District Office in Fresno, California. On October 16, 2012, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the basis of reprisal for prior protected EEO activity under Title VII when (1) he was terminated from the Agency on April 5, 1991, and (2) a former manager made erroneous statements regarding Complainant's character during his employment with the Agency, which Complainant believes has made it hard for him to find another job. The Agency dismissed the compliant, pursuant to 29 C.F.R. § 1614.107(a)(1), on the grounds that the instant complaint raised the same issues stated in Complainant's Complaint No. 2012-24370-FAA-06, which was filed on April 2, 2012.
CONTENTIONS ON APPEAL
On appeal, Complainant's main argument is that the Agency mis-framed his claim. Complainant contends that he is alleging that he was discriminated against when his former supervisor made negative comments to the EEO counselor in DOT Complaint No. 2012-24370-FAA-06, on May 12, 2012, which he maintains is a different claim from that raised in the April 2012 complaint. The Agency requests that we affirm its dismissal of the complaint.
ANALYSIS AND FINDINGS
With respect to claim (1), the record indicates that Complainant did include this issue in his Complaint No. 2012-24370-FAA-06. The Agency dismissed claim (1) in a final decision dated April 25, 2012. On October 16, 2012, the Commission, among other things, issued a decision in Gibson v. Department of Transportation, EEOC Appeal No. 0120122468, affirming the Agency's dismissal of this claim for untimeliness. Subsequently, Complainant's request for reconsideration was denied in Gibson v. Department of Transportation, EEOC Request No. 0520130073 (March 22, 2013). Therefore, we affirm the dismissal of claim (1) on the grounds that it states the same claim that has already been addressed by the Commission, pursuant to 29 C.F.R. § 1614.107(a)(1).
With respect to claim (2), the Commission has held that to allow the processing of a complaint regarding the participation of employees in the investigation of another EEO complaint by a co-worker or other agency employee would have a chilling effect on the processing of EEO complaints. See Calloway v. Dep't of the Army, EEOC Appeal No. 01943406 (July 15, 1994). Accordingly, statements made to an EEO Counselor in a separate EEO complaint cannot be the basis for a claim in another EEO complaint. In this case, based on Complainant's statements on appeal, we find that Complainant is alleging that, on May 12, 2012, his former supervisor made negative comments regarding Complainant's character and performance while talking to an EEO counselor about another EEO complaint. We find that this claim was properly dismissed, albeit on the grounds that it failed to state a claim, i.e., that to otherwise permit EEO complaints regarding statements made in the EEO process would have a chilling effect on the EEO process.
Further, complaints of discrimination must 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. 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 limitation period is triggered under the EEOC Regulations. See 29 C.F.R. § 1614.105(a)(2). Thus, the limitations period is not triggered until a complainant reasonably should have suspected discrimination, but before all the facts that would support a charge of discrimination have become apparent.
In this case, Complainant argues that he did not know the nature of the statements until the former supervisor made the comments to the EEO Counselor in the prior EEO matter. We find, however that Complainant states on appeal that he had reasonable suspicion that his former supervisor made negative comments regarding his prior employment to prospective employers as far back as 2007.
Accordingly, the Agency's final 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 (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
__3/28/13________________
Date
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353 | https://www.eeoc.gov/sites/default/files/decisions/2020_08_10/2020000123.pdf | 2020000123.pdf | PDF | application/pdf | 8,637 | Jamal A .,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency. | August 22, 2019 | Appeal Number: 2020000123
Background:
During the period at issue, Complainant worked as a Computer Specialist, GS -9, in Information
Technology (IT) at the Agency’s Network Services and Customer Service Support facility in Dallas, Texas. On June 19, 2019, Complainant initiated contact with an EEO Counselor. Informal efforts to resolve his concerns were not successful. On July 31, 2019, Complainant filed the instant formal complaint. Complainant claimed that the Agency subjected him to discrimination based on age when, on July 5, 2018, Complainant was
forced into retirement by Agency management.
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 2020000123
On August 22, 2019, the Agency issued a final decision. The Agency dismissed the formal
complaint for failure to comply with applicable time limits under 29 C.F.R. § 1614.107(a)(2).
Specifically, t he Agency determined that Complainant failed to initiate contact with an EEO
Counselor within 45 days of the alleged discrimination. Whereas Complainant retired on July 5, 2018, the Agency stated that Complainant failed to initiate EEO Counselor contact until June 19, 2019. The instant appeal followed. On appeal , Complainant contended that he timely contacted an EEO
Counselor . Complainant asserts that he spoke to an Agency EEO Counselor on an unspecified
date in May 2018. According to Complainant, du ring th is May 2018 contact, he verbally accused
Agency of age -based disparate treatment, harassment and unlawful bias against himself in
particular as well as similarly situated IT coworkers over age 40. Complainant state s that after
May 2018, he had “zer o contact” with the Agency regarding his EEO matter.
On an unspecified date in 2019, Complainant inquired with EEOC's Dallas District Office.
EEOC's Dallas District Office assigned Complainant's inquiry the matter number 450 -2019 -
00076X. He asserts that he received advice to “ refile ” his EEO claim against the Agency.
Complainant argues that his EEO Counselor contact should be considered timely because Agency managers deleted the records his EEO Counselor contact in May 2018.
Legal Analysis:
the Commission’s website.
2 2020000123
On August 22, 2019, the Agency issued a final decision. The Agency dismissed the formal
complaint for failure to comply with applicable time limits under 29 C.F.R. § 1614.107(a)(2).
Specifically, t he Agency determined that Complainant failed to initiate contact with an EEO
Counselor within 45 days of the alleged discrimination. Whereas Complainant retired on July 5, 2018, the Agency stated that Complainant failed to initiate EEO Counselor contact until June 19, 2019. The instant appeal followed. On appeal , Complainant contended that he timely contacted an EEO
Counselor . Complainant asserts that he spoke to an Agency EEO Counselor on an unspecified
date in May 2018. According to Complainant, du ring th is May 2018 contact, he verbally accused
Agency of age -based disparate treatment, harassment and unlawful bias against himself in
particular as well as similarly situated IT coworkers over age 40. Complainant state s that after
May 2018, he had “zer o contact” with the Agency regarding his EEO matter.
On an unspecified date in 2019, Complainant inquired with EEOC's Dallas District Office.
EEOC's Dallas District Office assigned Complainant's inquiry the matter number 450 -2019 -
00076X. He asserts that he received advice to “ refile ” his EEO claim against the Agency.
Complainant argues that his EEO Counselor contact should be considered timely because Agency managers deleted the records his EEO Counselor contact in May 2018.
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 an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel ac tion, within 45 days of the effective date of
that action. This Commission applies “reasonable suspicion” standard (as opposed to a “supportive facts" standard) to determine when the 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 triggered as soon as a complainant reasonably suspects discrimination.
Time limits shall be extended when an individual shows that he was not notified of the time limits or unaware of them, or that he reasonably did not know that the discriminatory matter or personnel action occurred, or that despite due diligence, circumstances beyond his control prevented timely EEO Counselor contact, or for other reasons considered sufficient by a n agency or EEOC.
The record reflects that the alleged discriminatory event occurred on July 5, 2018, but that
Complainant did not initiate contact with an EEO Counselor until June 19, 2019, which is beyond the 45- day limitation period. We were unpersuaded by Complainant’s unsupported assertions that
he had contacted an EEO Counselor as early as May 2018. Furthermore, we find Complainant was aware of the applicable time limit based on our records that show Complainant had filed at least two prior timel y EEO complaints during his employment with the Agency.
3 2020000123 | Jamal A .,1
Complainant,
v.
Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 2020000123
Agency No. IRS-19-1177-F
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated August 22, 2019, dismissing a formal complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Computer Specialist, GS -9, in Information
Technology (IT) at the Agency’s Network Services and Customer Service Support facility in Dallas, Texas. On June 19, 2019, Complainant initiated contact with an EEO Counselor. Informal efforts to resolve his concerns were not successful. On July 31, 2019, Complainant filed the instant formal complaint. Complainant claimed that the Agency subjected him to discrimination based on age when, on July 5, 2018, Complainant was
forced into retirement by Agency management.
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 2020000123
On August 22, 2019, the Agency issued a final decision. The Agency dismissed the formal
complaint for failure to comply with applicable time limits under 29 C.F.R. § 1614.107(a)(2).
Specifically, t he Agency determined that Complainant failed to initiate contact with an EEO
Counselor within 45 days of the alleged discrimination. Whereas Complainant retired on July 5, 2018, the Agency stated that Complainant failed to initiate EEO Counselor contact until June 19, 2019. The instant appeal followed. On appeal , Complainant contended that he timely contacted an EEO
Counselor . Complainant asserts that he spoke to an Agency EEO Counselor on an unspecified
date in May 2018. According to Complainant, du ring th is May 2018 contact, he verbally accused
Agency of age -based disparate treatment, harassment and unlawful bias against himself in
particular as well as similarly situated IT coworkers over age 40. Complainant state s that after
May 2018, he had “zer o contact” with the Agency regarding his EEO matter.
On an unspecified date in 2019, Complainant inquired with EEOC's Dallas District Office.
EEOC's Dallas District Office assigned Complainant's inquiry the matter number 450 -2019 -
00076X. He asserts that he received advice to “ refile ” his EEO claim against the Agency.
Complainant argues that his EEO Counselor contact should be considered timely because Agency managers deleted the records his EEO Counselor contact in May 2018.
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 an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel ac tion, within 45 days of the effective date of
that action. This Commission applies “reasonable suspicion” standard (as opposed to a “supportive facts" standard) to determine when the 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 triggered as soon as a complainant reasonably suspects discrimination.
Time limits shall be extended when an individual shows that he was not notified of the time limits or unaware of them, or that he reasonably did not know that the discriminatory matter or personnel action occurred, or that despite due diligence, circumstances beyond his control prevented timely EEO Counselor contact, or for other reasons considered sufficient by a n agency or EEOC.
The record reflects that the alleged discriminatory event occurred on July 5, 2018, but that
Complainant did not initiate contact with an EEO Counselor until June 19, 2019, which is beyond the 45- day limitation period. We were unpersuaded by Complainant’s unsupported assertions that
he had contacted an EEO Counselor as early as May 2018. Furthermore, we find Complainant was aware of the applicable time limit based on our records that show Complainant had filed at least two prior timel y EEO complaints during his employment with the Agency.
3 2020000123
CONCLUSION
The Agency's final decision dismissing the formal complaint for the reasons discussed above is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if 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 Offic e 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. 29 C.F.R. § 1614.405; EEO Management
Directive for 29 C.F.R. Part 1614 (EEO MD -110), at Ch. 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. 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). 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. 29 C.F.R. § 1614.604(c).
COMPLAINA NT’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.
4 2020000123
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 h as 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 COMMIS SION:
______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
March 10, 2020
Date | [
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354 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A32237_r.txt | 01A32237_r.txt | TXT | text/plain | 7,926 | Charlie C. Rosalin v. Department of the Navy 01A32237 September 22, 2003 . Charlie C. Rosalin, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency. | September 22, 2003 | Appeal Number: 01A32237
Legal Analysis:
the Commission
in a letter dated April 10, 2002. Complainant claims that he did not
learn of his right to file an EEO complaint until the latter part of
September 2001. Complainant argues that although he received sexual
harassment training, he was not taught during such training how to file
an EEO complaint.
In response, the agency asserts that at the time of complainant's
temporary appointment on August 10, 1992, all new employees to the
Shipyard were provided with an EEO Puget Sound Naval Shipyard booklet.
The agency states that complainant attended training in prevention of
sexual harassment on August 12, 1992, December 13, 1993, March 10, 1995,
and August 16, 1996, and that all attendees received handouts describing
the discrimination process and the 45-day limitation period for contacting
an EEO Counselor. According to the agency, all EEO instructions are
posted on official bulletin boards in complainant's shop and there are
bulletin boards located in employee common areas that are accessible to
all Shipyard employees.
Initially, we observe that the agency's definition of the issues in the
complaint is incomplete. A reading of the formal complaint reveals
that complainant claimed that he had been discriminated against upon
the aforementioned bases when his term appointment was not converted
to a career or career-conditional appointment; when he was not granted
lifetime reinstatement eligibility to his former Insulator position; when
he was required to sign a statement agreeing to the terms and conditions
of his term appointment; when he was terminated from his position; when
he was not restored to his Insulator position after he recovered from
an occupational injury; and when he was not offered a reassignment to
another position as a reasonable accommodation.
Complainant argues that he was not aware of the 45-day limitation period
for contacting an EEO Counselor. The record shows that the agency has
not provided sufficient evidence to establish that complainant had
actual or constructive notice of the 45-day time limit. The agency
has failed to provide independent evidence of the posting of the EEO
posters in question, i.e., affidavit by an appropriate agency official.
However, the alleged incidents occurred in 1997 and complainant did not
initiate contact with an EEO Counselor until May 7, 2002, approximately
five years later. The Commission has held that complainants must act
with due diligence in the pursuit of their claims or the doctrine of
laches may be applied. Under the doctrine of laches, an individual's
failure to pursue his actions could bar his claim. Since complainant
did not act with reasonable diligence in contacting an EEO Counselor,
the doctrine of laches requires dismissal.
Final Decision:
Accordingly, the agency's decision to dismiss complainant's complaint on the grounds of untimely EEO Counselor contact is AFFIRMED. | Charlie C. Rosalin v. Department of the Navy
01A32237
September 22, 2003
.
Charlie C. Rosalin,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A32237
Agency No. 0200251027
DECISION
Complainant initiated contact with an EEO Counselor on May 7, 2002. In a
formal EEO complaint dated August 19, 2002, complainant claimed that he
had been discriminated against on the bases of his disability (bilateral
epicondylitis, tendinitis and carpal tunnel on elbows, hands and thumbs),
race (Chamorro), color (brown), and national origin (Guam/Guamanian).
The agency defined the alleged incident as being that on March 29, 1997,
complainant's term appointment as an Insulator, WG-4203-10 expired.
In its decision dated January 23, 2003, the agency dismissed the complaint
pursuant to 29 C.F.R. §1614.107(a)(2), on the grounds that complainant
failed to contact an EEO Counselor in a timely manner. The agency
determined that complainant's EEO contact was approximately five years
after the alleged discrimination, and therefore after the expiration of
the 45-day limitation period for contacting an EEO Counselor.
On appeal, complainant contends that he was unaware of the time period
for contacting an EEO Counselor until he was informed by the Commission
in a letter dated April 10, 2002. Complainant claims that he did not
learn of his right to file an EEO complaint until the latter part of
September 2001. Complainant argues that although he received sexual
harassment training, he was not taught during such training how to file
an EEO complaint.
In response, the agency asserts that at the time of complainant's
temporary appointment on August 10, 1992, all new employees to the
Shipyard were provided with an EEO Puget Sound Naval Shipyard booklet.
The agency states that complainant attended training in prevention of
sexual harassment on August 12, 1992, December 13, 1993, March 10, 1995,
and August 16, 1996, and that all attendees received handouts describing
the discrimination process and the 45-day limitation period for contacting
an EEO Counselor. According to the agency, all EEO instructions are
posted on official bulletin boards in complainant's shop and there are
bulletin boards located in employee common areas that are accessible to
all Shipyard employees.
Initially, we observe that the agency's definition of the issues in the
complaint is incomplete. A reading of the formal complaint reveals
that complainant claimed that he had been discriminated against upon
the aforementioned bases when his term appointment was not converted
to a career or career-conditional appointment; when he was not granted
lifetime reinstatement eligibility to his former Insulator position; when
he was required to sign a statement agreeing to the terms and conditions
of his term appointment; when he was terminated from his position; when
he was not restored to his Insulator position after he recovered from
an occupational injury; and when he was not offered a reassignment to
another position as a reasonable accommodation.
Complainant argues that he was not aware of the 45-day limitation period
for contacting an EEO Counselor. The record shows that the agency has
not provided sufficient evidence to establish that complainant had
actual or constructive notice of the 45-day time limit. The agency
has failed to provide independent evidence of the posting of the EEO
posters in question, i.e., affidavit by an appropriate agency official.
However, the alleged incidents occurred in 1997 and complainant did not
initiate contact with an EEO Counselor until May 7, 2002, approximately
five years later. The Commission has held that complainants must act
with due diligence in the pursuit of their claims or the doctrine of
laches may be applied. Under the doctrine of laches, an individual's
failure to pursue his actions could bar his claim. Since complainant
did not act with reasonable diligence in contacting an EEO Counselor,
the doctrine of laches requires dismissal. Accordingly, the agency's
decision to dismiss 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
September 22, 2003
__________________
Date
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355 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120170991.txt | 0120170991.txt | TXT | text/plain | 36,547 | Annalee D.,1 Complainant, v. Emily W. Murphy, Administrator, General Services Administration, Agency. | December 15, 2016 | Appeal Number: 0120170991
Background:
At the time of events giving rise to this complaint, Complainant worked as a Telecommunications Specialist, GS-13, within the Federal Acquisition Service (FAS) in Washington, D.C.
On March 24, 2016, Complainant filed an EEO complaint in which she alleged that the Agency subjected her to reprisal because of prior protected EEO activity when:
1. On November 16, 2015, she became aware that her fiscal year 2015 (FY 2015) performance plan had been altered in the Comprehensive Human Resources Integrated System (CHRIS);
2. On January 14, 2016, she was told to withdraw her December 24, 2015 request for annual leave;
3. On January 20, 2016, her request for official time was denied;
4. On January 28, 2016, her time spent on EEO activities was being closely monitored; and
5. Around January 25, 2016, she became aware that she was left off emails that were sent to her team.
In an investigative statement, Complainant stated that she previously filed two EEO complaints regarding her immediate supervisor (S1) that were before an EEOC Administrative Judge (AJ). Regarding claim 1, Complainant stated that between November 10, 2015 and November 16, 2015, S1 asked her to review her FY 2015 annual performance plan and to be prepared to discuss it. Complainant further stated that when she went into the CHRIS system, she noticed that there was information in the critical factors that had not been in the FY 2015 performance plan. She stated that when she looked at the FY 2015 performance plan, she noticed that her FY 2015 performance plan had been altered. Complainant stated that some critical elements contained completely different standards in the altered plan than were found in her original FY 2015 plan.
She stated that later that day, S1 told her that he had not made any changes to her FY 2016 performance plan, and he used the FY 2015 plan to create the FY 2016 plan. Complainant stated that S1 said that perhaps her former immediate supervisor had made changes to her FY 2015 performance plan, but her former supervisor denied making changes to the plan when Complainant talked to her.
Regarding claim 2, Complainant stated that she requested leave on October 25, 2015 for December 24, 2015, which was a "use or lose leave" request. She stated that the leave was approved on two occasions, once when she used December 24, 2015 as an alternative work schedule (AWS) day off, and again when she changed December 24, 2015 to be a combination of annual leave and administrative/holiday leave after the President granted additional holiday leave for that date. However, Complainant stated that the timekeeper subsequently asked her to withdraw her annual leave request but did not provide any specific reason for her request. Complainant stated that she did not agree with the timekeeper's request because she is not in her supervisory chain of command and is not a supervisor or manager.
Regarding claim 3, Complainant stated that on January 20, 2016, she submitted a request for official time of approximately four hours to S1 via email, but S1 did denied the request without providing a reason for doing so. She stated that S1 told her to take leave if she needed to work on her EEO case.
Regarding claim 4, Complainant stated that on January 28, 2016, she had a conference call scheduled for 9:00 a.m. at her attorney's office, and she planned on leaving her home office around 8:30 a.m. for the appointment. She stated that she estimated that the meeting would be for an hour. Complainant further stated that S1 wanted her to let him know when she left her home office, when she arrived at the attorney's office, when she was leaving the attorney's office, and when she returned to her home office. She stated that S1 also told her to have her work-issued mobile device. "I felt on edge and nervous the whole time I was away from my home office attending to my EEO case," Complainant stated. Report of Investigation (ROI), p. 83.
Regarding claim 5, Complainant stated that during a blizzard on or about Monday, January 25, 2016, S1 sent out at least two emails to the Customer Service staff that provided guidance on using telework during that week because of the weather. She stated that she was not included on these emails. Complainant further stated that she normally teleworks Mondays and Tuesdays, and on Tuesday evening she sent S1 a request for ad-hoc telework for Wednesday because her neighborhood streets had not been plowed, but she did not hear from S1 for several hours. She stated that after the Office of Personnel Management (OPM) sent notice that the operating status would include unscheduled telework, she sent S1 another email that said that she would utilize the unscheduled telework option for that Wednesday. Complainant stated that S1 then responded that he had notified everyone in the office that he was authorizing telework for Wednesday, and during her conversation with S1, she learned that S1 had sent out another email that she did not receive that authorized everyone to telework on Tuesday.
After 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). In accordance with Complainant's request, 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 reprisal as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency violated EEOC's requirement that agencies separate the EEO process from defensive functions and that the Agency should be sanctioned for this violation. Complainant further argues that the Agency failed to produce an accurate and complete investigative report. Complainant also argues that the final decision improperly found that she did not establish a prima facie case of reprisal on some of her claims. The Agency requests we affirm its final decision.
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. 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
Claim 3: Denial of Official Time
As an initial matter, we note that although the Agency analyzed claim 3 as a discrimination claim, we have consistently held that an allegation pertaining to the denial of EEO official time states a separately processable claim alleging a violation of the EEOC regulations, without requiring a determination of whether discrimination motivated the Agency's action. See Edwards v. U.S. Postal Serv., EEOC Request No. 059605179 (Dec. 23, 1996).
EEOC's regulations provide complainants a reasonable amount of official time, if otherwise on duty, to prepare their EEO complaints and to responses to the Agency and the Commission's requests for information. The regulation found at 29 C.F.R. §1614.605(b) provides that "if the complainant is an employee of the agency, he or she shall have a reasonable amount of official lime, if otherwise on duty, to prepare the complaint and to respond to agency and EEOC requests for information." The Commission has the authority to remedy a violation of 29 C.F.R. §1614.605 without a finding of discrimination. Therefore, in reviewing this claim, our focus is not on the motivation, but rather on the justification for why Complainant was denied official time. Edwards, supra.
In this case, Complainant stated that on January 20, 2016, she submitted a request for official time of approximately four hours to S1 via email, but S1 denied the request without providing a reason for doing so. The record reflects, and Complainant affirms on appeal, that official time was requested for Complainant to work on her previous EEO complaints, Agency Numbers GSA-13-CO-Q-0045 and GSA-15-CO-Q-0021. Moreover, the record reveals that on January 20, 2016, the Agency informed the AJ presiding over those cases that it denied Complainant's request for official time because it already had provided her with over 100 hours of official time to work on her complaints, she was represented by counsel, and there were no meetings or hearings scheduled with Agency officials or the Commission. Further, S1 stated that he denied Complainant's request because she had already used an excessive amount of official time working on her EEO case, and she did not provide a satisfactory explanation of why she needed additional time.
Although the matter of official time was apparently raised with the AJ in Agency Numbers GSA-13-CO-Q-0045 and GSA-15-CO-Q-0021, the AJ's decision for those complaints does not indicate that this issue was addressed on the record. Moreover, there is sufficient evidence in the record for us to determine this claim with this complaint. Therefore, we address it herein.
Complainant maintains that S1 did not give a reason for denying her official time at the time of his decision. While this may be true, we note that Complainant does not rebut the Agency's claim that she had already been given over 100 hours of official time to prepare her complaints. Moreover, the record indicates that her request for official time occurred after the investigation had been completed, and over a year before the hearing. While there may have been a conference with the AJ during this period, there is no evidence that there was a need for Complainant to consult with her attorney about the cases for half a work day, especially in light of the fact that she had already been granted over 100 hours of official time. The Commission considers it reasonable for agencies to expect their employees to spend most of their time doing the work for which they are employed. EEO MD-110, Chap. 6 § VII.C. Therefore, an agency may restrict the overall hours of official time afforded. Id. Under these circumstances, we do not find that the Agency denied Complainant a reasonable amount of official time.
Adequacy of the Investigation
Complainant alleges that the Agency did not produce an accurate and complete investigative report because the report does not contain all 189 pages of supporting documents she submitted to the investigator. However, after a thorough review of the record, we find the investigator produced an appropriate and impartial factual record upon which we can make findings on Complainant's claim, in accordance with 29 C.F.R. § 1614.108(b).
Claims 1, 2, 4, and 5
Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate treatment discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Reprisal claims are considered with a broad view of coverage. See Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68 ((2006); see also, Carroll v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Id. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. Id.; see also, Carroll, supra.
In this case, the record reveals that Complainant previously filed two EEO complaints that named S1 as the responsible management official. The record further reveals that the two complaints were before an AJ during the time of the events of the case. S1 acknowledged that he was aware of Complainant's EEO activity during the time period at issue. Further, we find that the alleged actions are reasonably likely to deter EEO activity. Consequently, we find that the Complainant established a prima facie case of reprisal.
Nevertheless, we also find that the Agency provided legitimate, nondiscriminatory reasons for its actions regarding claims 1, 2, 4, and 5. Specifically, regarding claim 1, S1 stated that Complainant's performance plan was not altered, but her Performance Plan Worksheet (PPW) was changed. He stated that no signature was required for the Worksheet because it was a guide, which assists the supervisor in evaluating an individual's performance against the critical elements of their performance plan. S1 further stated that when he showed Complainant her FY 2016 performance plan and worksheet in November 2015, she refused to sign the plan and noted the changes in the worksheet from 2015. S1 stated that he indicated to Complainant that he copied and pasted directly from the CHRIS system the previous year's documents and did not know how it could have been changed from what she had been given in FY 2015. He stated that Complainant's PPW was changed to include work about Individual Work Plans and a requirement for customer visits, and he believed the Supervisory Human Resources Specialist (SHRS) who had drafted a revised worksheet for him to review altered Complainant's PPW.
S1 stated that it was a draft document that was never intended to replace the previous PPW without any concurrence and discussion with employees and the first-line supervisor. However, he stated that he understood that when the proposed changes were made to the PPW, the previous version was automatically replaced without anyone's knowledge. S1 stated that he believed that HR randomly selected Complainant's PPW as the one to revise as a template for him to review to see if PPWs could incorporate proposed changes.
SHRS stated that she was informed by S1 that Complainant's FY 2015 PPW was changed, but she did not know who altered it. However, SHRS also stated that she drafted a revised FY 2015 PPW for S1 to review for Complainant. She stated that the FY 2015 plan was going to be changed for all employees to incorporate tasks from the Individual Work Plan, which was a separate document. She stated that once Complainant's performance plan was changed, the supervisor would look at the revisions and make edits if necessary and use the plan as a master copy for all employees so that everyone had the same revised plan.
Regarding claim 2, S1 stated that on December 14, 2015, he approved Complainant for leave on December 24, 2015. He stated that on January 26, 2016, he instructed the timekeeper to inform Complainant to withdraw her request for five hours of annual leave because Human Resources (HR) guidance issued on December 15, 2015 indicated that she must use December 24, 2015 as her AWS and take the half-day holiday on December 23, 2015, not December 24, 2015. He further stated that the timekeeper was acting on his behalf when she asked Complainant to withdraw her leave slip. S1 also stated that five other employees under his supervision who had leave scheduled for December 24, 2015 were also asked to withdraw their requests.
Regarding claim 4, S1 stated that on January 28, 2016, he instructed Complainant to let him know when she left her home office, when she arrived at the attorney's office, when she returned to her home office, and to have her work-issued mobile device because he wanted to know when she was teleworking versus when she was on official time so that he could contact her if he needed to without interrupting her meeting with her lawyer.
Regarding claim 5, S1 stated that Complainant's exclusion from the January 25, 2016, inclement weather email was an oversight caused by his manual selection of employee names, instead of a group address. He further stated that he thought he had selected everyone's name on his staff before he sent the email on January 25, 2016. He further stated that January 25, 2016 was Complainant's normal telework day, and she notified him that she was teleworking that day. He stated that after Complainant sent him an email on January 26, 2016 asking if there was any word from OPM regarding the next day, he realized Complainant had been excluded from his January 26, 2016 email advising employees to telework on Wednesday, January 27, 2016. He stated that he immediately sent Complainant an apology email.
In an attempt to prove pretext, Complainant maintains that S1 changed his story about why or how her PPW was changed. We note that in her initial statement, S1 stated that he told Complainant he copied and pasted directly from the CHRIS appraisal system the previous year's documents, but three months later in his supplemental statement, he stated that he did not copy and paste anything from Complainant's FY 2015 performance plan. This discrepancy is inexplicable, but HR officials attested that the changes to Complainant's PPW only appeared on the worksheet, and they believed that S1 was not aware of the changes until after Complainant brought them to his attention. Moreover, the record reveals that HR and S1 attached a copy of the original PPW to Complainant's appraisal, which underscores the fact that the altered PPW was not used to evaluate Complainant. Consequently, we are persuaded Complainant's PPW plan was inadvertently altered during the process of having S1 review performance plans for all employees, and not because of retaliatory motives.
Regarding the withdrawal of Complainant's leave request, Complainant contends that there is no email evidence that S1 or the timekeeper asked other employees to withdraw their leave requests. However, we note that Complainant suffered no punitive consequences because of S1's directive to withdraw her leave request for December 24, 2015. In fact, the record indicates that in compliance with OPM and Agency instructions, S1's directive offered Complainant a time and attendance record of having all of December 24, 2015 off as her AWS, while having half a day holiday on December 23, 2015, although Complainant actually took December 23, 2015 as her AWS and worked a half day on December 24, 2015. Complainant was not charged AWOL or even forced to retroactively submit a leave slip to reflect the discrepancy. Thus, we find no reason to suspect retaliatory motive regarding this matter.
Regarding S1's monitoring of her time with her attorney, Complainant maintains that she was on edge during the meeting because of S1's actions. However, we do not find that S1's actions were an impermissible intrusion into Complainant's EEO activity. Instead, we are persuaded that they were an appropriate attempt to confirm Complainant's availability for work, while respecting her official time. In so finding, we find that there was no evidence that S1 sought to determine what Complainant discussed with her attorney, or to otherwise dissuade Complainant from EEO activity. In fact, S1's actions were designed to prevent entanglement in Complainant's EEO activity, not to foster it.
Regarding her exclusion from the inclement weather email, Complainant maintains that it was unlikely that S1's actions were an oversight because an employee who lived outside the Washington, D.C. area and two contractors who did not report directly to him received the emails. However, we find it plausible that S1 inadvertently left Complainant off the list by inputting email recipient names in a piecemeal manner. Moreover, we find it reasonable that S1 would want to inform relevant contractors and employees outside of Washington about the office's operating status.
We find that Complainant did not prove that the Agency's nondiscriminatory explanations are pretext for unlawful discrimination. Therefore, we affirm the Agency's finding that Complainant did not prove she was subjected to reprisal.
Office of General Counsel's (OGC) involvement in the EEO Investigation
Complainant contends that the Agency's OGC improperly injected itself into the EEO investigation by providing legal counsel and representation to S1 and other witnesses during the investigation. We note that the EEO Counselor reported that S1 was interviewed with "his representative" from OGC. ROI, pp. 15, 17. Further, in his affidavit response, S1 stated that OGC assisted and contributed to the preparation of his affidavit, ROI, p. 168. Additionally, the SHRS and the Director stated that OGC also assisted them in preparing their affidavit responses for this investigation. ROI, pp. 199, 214.
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 1 § IV.D (Aug. 5, 2015) provides, in relevant part:
Heads of agencies must manage the dual obligations of carrying out fair and impartial investigations of complaints that result in final agency determinations as to whether discrimination has occurred and defending the agency against claims of employment discrimination. Only through the vigilant separation of the investigative and defensive functions can this inherent tension be managed.
Ensuring a clear separation between the agency's EEO complaint program and the agency's defensive function is thus the essential underpinning of a fair and impartial investigation, enhancing the credibility of the EEO office and the integrity of the EEO complaints process.
There must be a firewall between the EEO function and the agency's defensive function. The firewall will ensure that actions taken by the agency to protect itself from legal liability will not negatively influence or affect the agency's process for determining whether discrimination has occurred and, if such discrimination did occur, for remedying it at the earliest stage possible. | Annalee D.,1
Complainant,
v.
Emily W. Murphy,
Administrator,
General Services Administration,
Agency.
Appeal No. 0120170991
Agency No. GSA-16-CO-Q-0027
DECISION
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 December 15, 2016, final decision concerning her equal employment opportunity (EEO) complaint 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.
ISSUES PRESENTED
The issues presented are whether the Agency properly found that Complainant did not prove she was subjected to reprisal, and whether the Agency should be sanctioned because its Office of General Counsel (OGC) intruded into the EEO process during counseling and the investigation.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Telecommunications Specialist, GS-13, within the Federal Acquisition Service (FAS) in Washington, D.C.
On March 24, 2016, Complainant filed an EEO complaint in which she alleged that the Agency subjected her to reprisal because of prior protected EEO activity when:
1. On November 16, 2015, she became aware that her fiscal year 2015 (FY 2015) performance plan had been altered in the Comprehensive Human Resources Integrated System (CHRIS);
2. On January 14, 2016, she was told to withdraw her December 24, 2015 request for annual leave;
3. On January 20, 2016, her request for official time was denied;
4. On January 28, 2016, her time spent on EEO activities was being closely monitored; and
5. Around January 25, 2016, she became aware that she was left off emails that were sent to her team.
In an investigative statement, Complainant stated that she previously filed two EEO complaints regarding her immediate supervisor (S1) that were before an EEOC Administrative Judge (AJ). Regarding claim 1, Complainant stated that between November 10, 2015 and November 16, 2015, S1 asked her to review her FY 2015 annual performance plan and to be prepared to discuss it. Complainant further stated that when she went into the CHRIS system, she noticed that there was information in the critical factors that had not been in the FY 2015 performance plan. She stated that when she looked at the FY 2015 performance plan, she noticed that her FY 2015 performance plan had been altered. Complainant stated that some critical elements contained completely different standards in the altered plan than were found in her original FY 2015 plan.
She stated that later that day, S1 told her that he had not made any changes to her FY 2016 performance plan, and he used the FY 2015 plan to create the FY 2016 plan. Complainant stated that S1 said that perhaps her former immediate supervisor had made changes to her FY 2015 performance plan, but her former supervisor denied making changes to the plan when Complainant talked to her.
Regarding claim 2, Complainant stated that she requested leave on October 25, 2015 for December 24, 2015, which was a "use or lose leave" request. She stated that the leave was approved on two occasions, once when she used December 24, 2015 as an alternative work schedule (AWS) day off, and again when she changed December 24, 2015 to be a combination of annual leave and administrative/holiday leave after the President granted additional holiday leave for that date. However, Complainant stated that the timekeeper subsequently asked her to withdraw her annual leave request but did not provide any specific reason for her request. Complainant stated that she did not agree with the timekeeper's request because she is not in her supervisory chain of command and is not a supervisor or manager.
Regarding claim 3, Complainant stated that on January 20, 2016, she submitted a request for official time of approximately four hours to S1 via email, but S1 did denied the request without providing a reason for doing so. She stated that S1 told her to take leave if she needed to work on her EEO case.
Regarding claim 4, Complainant stated that on January 28, 2016, she had a conference call scheduled for 9:00 a.m. at her attorney's office, and she planned on leaving her home office around 8:30 a.m. for the appointment. She stated that she estimated that the meeting would be for an hour. Complainant further stated that S1 wanted her to let him know when she left her home office, when she arrived at the attorney's office, when she was leaving the attorney's office, and when she returned to her home office. She stated that S1 also told her to have her work-issued mobile device. "I felt on edge and nervous the whole time I was away from my home office attending to my EEO case," Complainant stated. Report of Investigation (ROI), p. 83.
Regarding claim 5, Complainant stated that during a blizzard on or about Monday, January 25, 2016, S1 sent out at least two emails to the Customer Service staff that provided guidance on using telework during that week because of the weather. She stated that she was not included on these emails. Complainant further stated that she normally teleworks Mondays and Tuesdays, and on Tuesday evening she sent S1 a request for ad-hoc telework for Wednesday because her neighborhood streets had not been plowed, but she did not hear from S1 for several hours. She stated that after the Office of Personnel Management (OPM) sent notice that the operating status would include unscheduled telework, she sent S1 another email that said that she would utilize the unscheduled telework option for that Wednesday. Complainant stated that S1 then responded that he had notified everyone in the office that he was authorizing telework for Wednesday, and during her conversation with S1, she learned that S1 had sent out another email that she did not receive that authorized everyone to telework on Tuesday.
After 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). In accordance with Complainant's request, 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 reprisal as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency violated EEOC's requirement that agencies separate the EEO process from defensive functions and that the Agency should be sanctioned for this violation. Complainant further argues that the Agency failed to produce an accurate and complete investigative report. Complainant also argues that the final decision improperly found that she did not establish a prima facie case of reprisal on some of her claims. The Agency requests we affirm its final decision.
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
Claim 3: Denial of Official Time
As an initial matter, we note that although the Agency analyzed claim 3 as a discrimination claim, we have consistently held that an allegation pertaining to the denial of EEO official time states a separately processable claim alleging a violation of the EEOC regulations, without requiring a determination of whether discrimination motivated the Agency's action. See Edwards v. U.S. Postal Serv., EEOC Request No. 059605179 (Dec. 23, 1996).
EEOC's regulations provide complainants a reasonable amount of official time, if otherwise on duty, to prepare their EEO complaints and to responses to the Agency and the Commission's requests for information. The regulation found at 29 C.F.R. §1614.605(b) provides that "if the complainant is an employee of the agency, he or she shall have a reasonable amount of official lime, if otherwise on duty, to prepare the complaint and to respond to agency and EEOC requests for information." The Commission has the authority to remedy a violation of 29 C.F.R. §1614.605 without a finding of discrimination. Therefore, in reviewing this claim, our focus is not on the motivation, but rather on the justification for why Complainant was denied official time. Edwards, supra.
In this case, Complainant stated that on January 20, 2016, she submitted a request for official time of approximately four hours to S1 via email, but S1 denied the request without providing a reason for doing so. The record reflects, and Complainant affirms on appeal, that official time was requested for Complainant to work on her previous EEO complaints, Agency Numbers GSA-13-CO-Q-0045 and GSA-15-CO-Q-0021. Moreover, the record reveals that on January 20, 2016, the Agency informed the AJ presiding over those cases that it denied Complainant's request for official time because it already had provided her with over 100 hours of official time to work on her complaints, she was represented by counsel, and there were no meetings or hearings scheduled with Agency officials or the Commission. Further, S1 stated that he denied Complainant's request because she had already used an excessive amount of official time working on her EEO case, and she did not provide a satisfactory explanation of why she needed additional time.
Although the matter of official time was apparently raised with the AJ in Agency Numbers GSA-13-CO-Q-0045 and GSA-15-CO-Q-0021, the AJ's decision for those complaints does not indicate that this issue was addressed on the record. Moreover, there is sufficient evidence in the record for us to determine this claim with this complaint. Therefore, we address it herein.
Complainant maintains that S1 did not give a reason for denying her official time at the time of his decision. While this may be true, we note that Complainant does not rebut the Agency's claim that she had already been given over 100 hours of official time to prepare her complaints. Moreover, the record indicates that her request for official time occurred after the investigation had been completed, and over a year before the hearing. While there may have been a conference with the AJ during this period, there is no evidence that there was a need for Complainant to consult with her attorney about the cases for half a work day, especially in light of the fact that she had already been granted over 100 hours of official time. The Commission considers it reasonable for agencies to expect their employees to spend most of their time doing the work for which they are employed. EEO MD-110, Chap. 6 § VII.C. Therefore, an agency may restrict the overall hours of official time afforded. Id. Under these circumstances, we do not find that the Agency denied Complainant a reasonable amount of official time.
Adequacy of the Investigation
Complainant alleges that the Agency did not produce an accurate and complete investigative report because the report does not contain all 189 pages of supporting documents she submitted to the investigator. However, after a thorough review of the record, we find the investigator produced an appropriate and impartial factual record upon which we can make findings on Complainant's claim, in accordance with 29 C.F.R. § 1614.108(b).
Claims 1, 2, 4, and 5
Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate treatment discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Reprisal claims are considered with a broad view of coverage. See Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68 ((2006); see also, Carroll v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Id. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. Id.; see also, Carroll, supra.
In this case, the record reveals that Complainant previously filed two EEO complaints that named S1 as the responsible management official. The record further reveals that the two complaints were before an AJ during the time of the events of the case. S1 acknowledged that he was aware of Complainant's EEO activity during the time period at issue. Further, we find that the alleged actions are reasonably likely to deter EEO activity. Consequently, we find that the Complainant established a prima facie case of reprisal.
Nevertheless, we also find that the Agency provided legitimate, nondiscriminatory reasons for its actions regarding claims 1, 2, 4, and 5. Specifically, regarding claim 1, S1 stated that Complainant's performance plan was not altered, but her Performance Plan Worksheet (PPW) was changed. He stated that no signature was required for the Worksheet because it was a guide, which assists the supervisor in evaluating an individual's performance against the critical elements of their performance plan. S1 further stated that when he showed Complainant her FY 2016 performance plan and worksheet in November 2015, she refused to sign the plan and noted the changes in the worksheet from 2015. S1 stated that he indicated to Complainant that he copied and pasted directly from the CHRIS system the previous year's documents and did not know how it could have been changed from what she had been given in FY 2015. He stated that Complainant's PPW was changed to include work about Individual Work Plans and a requirement for customer visits, and he believed the Supervisory Human Resources Specialist (SHRS) who had drafted a revised worksheet for him to review altered Complainant's PPW.
S1 stated that it was a draft document that was never intended to replace the previous PPW without any concurrence and discussion with employees and the first-line supervisor. However, he stated that he understood that when the proposed changes were made to the PPW, the previous version was automatically replaced without anyone's knowledge. S1 stated that he believed that HR randomly selected Complainant's PPW as the one to revise as a template for him to review to see if PPWs could incorporate proposed changes.
SHRS stated that she was informed by S1 that Complainant's FY 2015 PPW was changed, but she did not know who altered it. However, SHRS also stated that she drafted a revised FY 2015 PPW for S1 to review for Complainant. She stated that the FY 2015 plan was going to be changed for all employees to incorporate tasks from the Individual Work Plan, which was a separate document. She stated that once Complainant's performance plan was changed, the supervisor would look at the revisions and make edits if necessary and use the plan as a master copy for all employees so that everyone had the same revised plan.
Regarding claim 2, S1 stated that on December 14, 2015, he approved Complainant for leave on December 24, 2015. He stated that on January 26, 2016, he instructed the timekeeper to inform Complainant to withdraw her request for five hours of annual leave because Human Resources (HR) guidance issued on December 15, 2015 indicated that she must use December 24, 2015 as her AWS and take the half-day holiday on December 23, 2015, not December 24, 2015. He further stated that the timekeeper was acting on his behalf when she asked Complainant to withdraw her leave slip. S1 also stated that five other employees under his supervision who had leave scheduled for December 24, 2015 were also asked to withdraw their requests.
Regarding claim 4, S1 stated that on January 28, 2016, he instructed Complainant to let him know when she left her home office, when she arrived at the attorney's office, when she returned to her home office, and to have her work-issued mobile device because he wanted to know when she was teleworking versus when she was on official time so that he could contact her if he needed to without interrupting her meeting with her lawyer.
Regarding claim 5, S1 stated that Complainant's exclusion from the January 25, 2016, inclement weather email was an oversight caused by his manual selection of employee names, instead of a group address. He further stated that he thought he had selected everyone's name on his staff before he sent the email on January 25, 2016. He further stated that January 25, 2016 was Complainant's normal telework day, and she notified him that she was teleworking that day. He stated that after Complainant sent him an email on January 26, 2016 asking if there was any word from OPM regarding the next day, he realized Complainant had been excluded from his January 26, 2016 email advising employees to telework on Wednesday, January 27, 2016. He stated that he immediately sent Complainant an apology email.
In an attempt to prove pretext, Complainant maintains that S1 changed his story about why or how her PPW was changed. We note that in her initial statement, S1 stated that he told Complainant he copied and pasted directly from the CHRIS appraisal system the previous year's documents, but three months later in his supplemental statement, he stated that he did not copy and paste anything from Complainant's FY 2015 performance plan. This discrepancy is inexplicable, but HR officials attested that the changes to Complainant's PPW only appeared on the worksheet, and they believed that S1 was not aware of the changes until after Complainant brought them to his attention. Moreover, the record reveals that HR and S1 attached a copy of the original PPW to Complainant's appraisal, which underscores the fact that the altered PPW was not used to evaluate Complainant. Consequently, we are persuaded Complainant's PPW plan was inadvertently altered during the process of having S1 review performance plans for all employees, and not because of retaliatory motives.
Regarding the withdrawal of Complainant's leave request, Complainant contends that there is no email evidence that S1 or the timekeeper asked other employees to withdraw their leave requests. However, we note that Complainant suffered no punitive consequences because of S1's directive to withdraw her leave request for December 24, 2015. In fact, the record indicates that in compliance with OPM and Agency instructions, S1's directive offered Complainant a time and attendance record of having all of December 24, 2015 off as her AWS, while having half a day holiday on December 23, 2015, although Complainant actually took December 23, 2015 as her AWS and worked a half day on December 24, 2015. Complainant was not charged AWOL or even forced to retroactively submit a leave slip to reflect the discrepancy. Thus, we find no reason to suspect retaliatory motive regarding this matter.
Regarding S1's monitoring of her time with her attorney, Complainant maintains that she was on edge during the meeting because of S1's actions. However, we do not find that S1's actions were an impermissible intrusion into Complainant's EEO activity. Instead, we are persuaded that they were an appropriate attempt to confirm Complainant's availability for work, while respecting her official time. In so finding, we find that there was no evidence that S1 sought to determine what Complainant discussed with her attorney, or to otherwise dissuade Complainant from EEO activity. In fact, S1's actions were designed to prevent entanglement in Complainant's EEO activity, not to foster it.
Regarding her exclusion from the inclement weather email, Complainant maintains that it was unlikely that S1's actions were an oversight because an employee who lived outside the Washington, D.C. area and two contractors who did not report directly to him received the emails. However, we find it plausible that S1 inadvertently left Complainant off the list by inputting email recipient names in a piecemeal manner. Moreover, we find it reasonable that S1 would want to inform relevant contractors and employees outside of Washington about the office's operating status.
We find that Complainant did not prove that the Agency's nondiscriminatory explanations are pretext for unlawful discrimination. Therefore, we affirm the Agency's finding that Complainant did not prove she was subjected to reprisal.
Office of General Counsel's (OGC) involvement in the EEO Investigation
Complainant contends that the Agency's OGC improperly injected itself into the EEO investigation by providing legal counsel and representation to S1 and other witnesses during the investigation. We note that the EEO Counselor reported that S1 was interviewed with "his representative" from OGC. ROI, pp. 15, 17. Further, in his affidavit response, S1 stated that OGC assisted and contributed to the preparation of his affidavit, ROI, p. 168. Additionally, the SHRS and the Director stated that OGC also assisted them in preparing their affidavit responses for this investigation. ROI, pp. 199, 214.
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 1 § IV.D (Aug. 5, 2015) provides, in relevant part:
Heads of agencies must manage the dual obligations of carrying out fair and impartial investigations of complaints that result in final agency determinations as to whether discrimination has occurred and defending the agency against claims of employment discrimination. Only through the vigilant separation of the investigative and defensive functions can this inherent tension be managed.
Ensuring a clear separation between the agency's EEO complaint program and the agency's defensive function is thus the essential underpinning of a fair and impartial investigation, enhancing the credibility of the EEO office and the integrity of the EEO complaints process.
There must be a firewall between the EEO function and the agency's defensive function. The firewall will ensure that actions taken by the agency to protect itself from legal liability will not negatively influence or affect the agency's process for determining whether discrimination has occurred and, if such discrimination did occur, for remedying it at the earliest stage possible.
Accordingly, we have held that after the EEO process becomes adversarial, i.e., once a request for a hearing is submitted or an appeal is filed with the Commission, an agency's Office of General Counsel or other designated legal representative has a duty to represent the interests of the agency. Tammy S. v. Dep't of Defense, EEOC Appeal No. 0120084008 (June 6, 2014), request for reconsideration denied, EEOC Request No. 0520140438 (June 4, 2015). However, during the informal counseling stage and the investigation into the accepted issues of the complaint, the agency representative should not have a role in shaping the testimony of the witnesses or the evidence gathered by the EEO Investigator. Id.
We note that in Rucker v. Department of the Treasury, EEOC Appeal No. 0120082225 (February 4, 2011), request for reconsideration denied, EEOC Request No. 0520110343 (April 26, 2011), the complainant claimed that the agency's Office of General Counsel had improperly injected itself into the EEO investigation by reviewing and assisting in the development of management affidavits before submission to the EEO investigator. The Commission advised the agency that "it should be careful to avoid even the appearance that it is interfering with the EEO process."
In this case, Agency counsel clearly assisted Agency witnesses with their affidavit responses during the investigation before they submitted responses to the investigator. Further, OGC accompanied S1 to an investigative interview and indicated that it was acting as his representative. The Agency maintains that it is permissible to have OGC represent and assist management officials before the hearing stage because the Agency is liable for the actions of its supervisors and managers. However, in Rucker, we held that agency counsel could not prepare or review witness statements even when the statements were made by management officials. As such, the prohibition on defense counsel's intrusion into the EEO process before the hearing stage does not depend upon the status of the witnesses. Therefore, we find that Agency counsel impermissibly interfered with the EEO investigation. See Josefina L. v. Social Security Administration, EEOC Appeal No. 0120161760 (July 10, 2018) (Commission found Agency impermissibly interfered with the EEO investigation where its OGC reviewed Complainant's draft affidavit responses and provided him with feedback about his responses before he submitted them to the investigator).
Sanction
In Royal v. Department of Veterans Affairs, EEOC Request No. 0520080052 (Sep. 25, 2009), the Commission held that it "has the inherent power to protect its administrative process from abuse by either party and must insure that agencies, as well as complainants, abide by its regulations." In appropriate circumstances, sanctions are used by the Commission to protect the EEO process.
We note that the Commission uses sanctions to deter the underlying conduct of the non-complying party and prevent similar misconduct in the future. Barbour v. U. S. Postal Serv., EEOC 07A30133 (June 16, 2005). Moreover, sanctions must be tailored to each situation by applying the least severe sanction necessary to respond to a party's failure to show good cause for its actions and to equitably remedy the opposing party. Royal v. Dep't of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009); Gray v. Dep't of Def., EEOC Appeal No. 07A50030 (Mar. 1, 2007); Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec 8, 2000). Several factors are considered in "tailoring" a sanction and determining if a particular sanction is warranted: (1) the extent and nature of the non-compliance, and the justification presented by the non-complying party; (2) the prejudicial effect of the non-compliance on the opposing party; (3) the consequences resulting from the delay in justice; and (4) the effect on the integrity of the EEO process. Royal v. Dep't of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009) (the effect on the integrity of the EEO process, and protecting that process, is of "paramount" importance to the "Commission's ability to carry out its charge of eradicating discrimination in the federal sector").
In this case, we determine that OGC's actions undermined the integrity of the EEO process by eroding the necessary separation of the investigative process from the Agency's defensive functions. Further, the fact that OGC reviewed multiple employees' witness statements indicates that the Agency has a practice of subjecting witness statements to OGC review during the investigation. Additionally, we find the Agency OGC's involvement in the informal stage to be an extraordinarily bold and egregious intrusion into the early stages of the EEO process. Thus, we find that sanctions are appropriate in this case.
In Tammy S. v. Dep't of Defense, supra, and in Josefina F. v. Social Security Administration, supra, we held that OGC's encroachment into the investigative stage warranted the sanction of ordering EEO managers and OGC personnel to undergo training on the proper role of OGC in the EEO process. We find that this sanction is also appropriate for this case. In so finding, we determine that OGC's actions did not impact the investigation or ultimate determination of Complainant's case to such an extent that a more severe sanction is warranted beyond training.
CONCLUSION
Accordingly, 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. However, we find that Agency counsel impermissibly encroached upon the investigative stage of the EEO process. Therefore, we REMAND this matter to the Agency for actions consistent with this decision and the ORDER set forth below.
ORDER
The Agency is ordered to take the following remedial action within one hundred and twenty (120) days of the date this decision is issued:
The Agency shall provide at least four (4) hours of in-person training to its EEO management officials and personnel in its Office of General Counsel regarding their responsibilities concerning EEO case processing and the appropriate role of the Office of General Counsel in the EEO process.
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).
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 (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 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 (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 10, 2018
Date
------------------------------------------------------------
------------------------------------------------------------
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356 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120103115.txt | 0120103115.txt | TXT | text/plain | 15,494 | Hans Miller, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency. | June 23, 2010 | Appeal Number: 0120103115
Background:
At the time of events giving rise to this complaint, Complainant, who
is hearing impaired, worked as a Maintenance Mechanic in the Agencyâs
Public Works Department at the U.S. Naval Submarine Base in Groton,
Connecticut. On April 23, 2009,1 Complainant went to the Agencyâs
EEO Office without an appointment. Complainant was accompanied by two
co-workers (CW1 and CW2), all of whom are hearing-impaired. The EEO
Technician, the EEO Specialist, and the Reasonable Accommodation
Coordinator (RAC) were present during Complainantâs walk-in visit
to the Office. CW1 did most of the communicating with the EEO Office
employees on Complainantâs behalf because she was able to speak,
sign, and interpret Complainantâs sign language. No appointment
was necessary to speak with someone in the EEO Office; however, an
appointment is usually made for an employee to return later to conduct
an intake session. Complainant was aware that the EEO Office did not
have a sign language interpreter present before he went to the Office,
yet he believed that the EEO Office was required to have a full-time or
part-time sign language interpreter on staff.
On August 10, 2009, Complainant filed a formal complaint alleging that
the Agency discriminated against him on the basis of disability (hearing
impaired) when on April 21, 2009, he was not afforded the reasonable
accommodation of an interpreter, for a walk-in visit to the EEO Office.
Complainant contended that he needed an interpreter because he was unable
to communicate his concerns on his own.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation (ROI) and notice of his
right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant requested that the Agency issue a FAD and, in accordance with
Complainant's request, the Agency issued a FAD pursuant to 29 C.F.R. §
 1614.110(b) on June 23, 2010.
In the FAD, the Agency noted that the EEO Technician stated that
usually an employee who walked into the EEO Office would speak to an
EEO Technician, and an intake appointment would be scheduled. The EEO
Specialist explained to CW1, who, in turn, relayed to Complainant,
that an appointment would have to be made in advance to arrange for an
interpreter to be present. RAC noted that CW1 indicated that she would
talk with the union representative about returning to the EEO Office,
and the union representative would complete Complainantâs paperwork
to begin the intake process. RAC affirmed that Complainant and CW1
appeared to understand what was being communicated.
Complainant alleged that the EEO Office did not make any attempt to obtain
an interpreter for him and that a 2004 court order required the Agency
to have an interpreter present. In addition, Complainant contended that
he has been denied an interpreter on numerous occasions in the past.
Further, Complainant argued that CW1 was not a certified interpreter
and her assistance was not an effective accommodation.
RAC denied Complainantâs allegation that the EEO Office was required
to have a full-time or part-time sign language interpreter on staff.
RAC stated that the written policy was for an interpreter to be present
any time there was a disciplinary action or a request for service.
Further, RAC confirmed that the Agency had a contract with a sign language
service to provide those services, but the need for an interpreter had
to be communicated in advance as there was no permanent sign language
interpreter on staff. The EEO Technician asserted that the Office
informed Complainant and CW1 that an interpreter could be arranged,
but not that same day.
Additionally, in response to Complainantâs arguments that CW1âs
presence to assist him was not an excuse for the Agencyâs failure
to provide him an accommodation, RAC affirmed that the methods used
to communicate with Complainant and CW1 were acceptable under the
circumstances and that Complainant used CW1 as his spokesperson.
RAC maintained that CW1 indicated that she and Complainant would take
the paperwork, complete it, and return it to the Office.
The Agency concluded that the evidence established that when Complainant
went to the EEO Office without an appointment on April 21, 2009, CW1
was effectively acting as his sign language interpreter. That meeting
was essentially to document Complainant's visit to the EEO Office and to
ascertain the purpose for his visit, which CW1 communicated to the EEO
staff present. The evidence further established that a sign language
interpreter needed to be requested in advance and that Complainant could
have a sign language interpreter arranged for him when he returned for
his intake interview. Thus, the Agency concluded that Complainant
had provided insufficient evidence to support his claim that he was
not accommodated during his visit to the EEO Office. As a result, the
Agency determined that Complainant had not been denied an accommodation
in violation of the Rehabilitation Act.
CONTENTIONS ON APPEAL
On appeal, Complainant alleges that this is not an isolated occurrence;
rather, it is the most recent occurrence of the Agencyâs denial of the
benefits and privileges of employment. Further, Complainant contends
that the Agency mischaracterized his interaction with the EEO Office
as that of satisfaction and not of consternation and frustration
at the fact that no accommodation was provided or made available.
Finally, Complainant argues that CW1âs involvement did not negate
the Agencyâs obligation to provide him reasonable accommodation.
Accordingly, Complainant requests that the Commission reverse the FAD.
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 Agencyâs 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
(EEO MD-110), at 9-15 (Nov. 9, 1999) (explaining that the de novo
standard of review ârequires that the Commission examine the record
without regard to the factual and legal determinations of the previous
Legal Analysis:
the Commission accepts Complainantâs
appeal from the June 23, 2010 final Agency decision (FAD) concerning
his equal employment opportunity (EEO) complaint 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.
For the following reasons, the Commission AFFIRMS the FAD.
BACKGROUND
At the time of events giving rise to this complaint, Complainant, who
is hearing impaired, worked as a Maintenance Mechanic in the Agencyâs
Public Works Department at the U.S. Naval Submarine Base in Groton,
Connecticut. On April 23, 2009,1 Complainant went to the Agencyâs
EEO Office without an appointment. Complainant was accompanied by two
co-workers (CW1 and CW2), all of whom are hearing-impaired. The EEO
Technician, the EEO Specialist, and the Reasonable Accommodation
Coordinator (RAC) were present during Complainantâs walk-in visit
to the Office. CW1 did most of the communicating with the EEO Office
employees on Complainantâs behalf because she was able to speak,
sign, and interpret Complainantâs sign language. No appointment
was necessary to speak with someone in the EEO Office; however, an
appointment is usually made for an employee to return later to conduct
an intake session. Complainant was aware that the EEO Office did not
have a sign language interpreter present before he went to the Office,
yet he believed that the EEO Office was required to have a full-time or
part-time sign language interpreter on staff.
On August 10, 2009, Complainant filed a formal complaint alleging that
the Agency discriminated against him on the basis of disability (hearing
impaired) when on April 21, 2009, he was not afforded the reasonable
accommodation of an interpreter, for a walk-in visit to the EEO Office.
Complainant contended that he needed an interpreter because he was unable
to communicate his concerns on his own.
At the | 
Hans Miller,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120103115
Agency No. DON-09-40085-01913
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainantâs
appeal from the June 23, 2010 final Agency decision (FAD) concerning
his equal employment opportunity (EEO) complaint 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.
For the following reasons, the Commission AFFIRMS the FAD.
BACKGROUND
At the time of events giving rise to this complaint, Complainant, who
is hearing impaired, worked as a Maintenance Mechanic in the Agencyâs
Public Works Department at the U.S. Naval Submarine Base in Groton,
Connecticut. On April 23, 2009,1 Complainant went to the Agencyâs
EEO Office without an appointment. Complainant was accompanied by two
co-workers (CW1 and CW2), all of whom are hearing-impaired. The EEO
Technician, the EEO Specialist, and the Reasonable Accommodation
Coordinator (RAC) were present during Complainantâs walk-in visit
to the Office. CW1 did most of the communicating with the EEO Office
employees on Complainantâs behalf because she was able to speak,
sign, and interpret Complainantâs sign language. No appointment
was necessary to speak with someone in the EEO Office; however, an
appointment is usually made for an employee to return later to conduct
an intake session. Complainant was aware that the EEO Office did not
have a sign language interpreter present before he went to the Office,
yet he believed that the EEO Office was required to have a full-time or
part-time sign language interpreter on staff.
On August 10, 2009, Complainant filed a formal complaint alleging that
the Agency discriminated against him on the basis of disability (hearing
impaired) when on April 21, 2009, he was not afforded the reasonable
accommodation of an interpreter, for a walk-in visit to the EEO Office.
Complainant contended that he needed an interpreter because he was unable
to communicate his concerns on his own.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation (ROI) and notice of his
right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant requested that the Agency issue a FAD and, in accordance with
Complainant's request, the Agency issued a FAD pursuant to 29 C.F.R. §
 1614.110(b) on June 23, 2010.
In the FAD, the Agency noted that the EEO Technician stated that
usually an employee who walked into the EEO Office would speak to an
EEO Technician, and an intake appointment would be scheduled. The EEO
Specialist explained to CW1, who, in turn, relayed to Complainant,
that an appointment would have to be made in advance to arrange for an
interpreter to be present. RAC noted that CW1 indicated that she would
talk with the union representative about returning to the EEO Office,
and the union representative would complete Complainantâs paperwork
to begin the intake process. RAC affirmed that Complainant and CW1
appeared to understand what was being communicated.
Complainant alleged that the EEO Office did not make any attempt to obtain
an interpreter for him and that a 2004 court order required the Agency
to have an interpreter present. In addition, Complainant contended that
he has been denied an interpreter on numerous occasions in the past.
Further, Complainant argued that CW1 was not a certified interpreter
and her assistance was not an effective accommodation.
RAC denied Complainantâs allegation that the EEO Office was required
to have a full-time or part-time sign language interpreter on staff.
RAC stated that the written policy was for an interpreter to be present
any time there was a disciplinary action or a request for service.
Further, RAC confirmed that the Agency had a contract with a sign language
service to provide those services, but the need for an interpreter had
to be communicated in advance as there was no permanent sign language
interpreter on staff. The EEO Technician asserted that the Office
informed Complainant and CW1 that an interpreter could be arranged,
but not that same day.
Additionally, in response to Complainantâs arguments that CW1âs
presence to assist him was not an excuse for the Agencyâs failure
to provide him an accommodation, RAC affirmed that the methods used
to communicate with Complainant and CW1 were acceptable under the
circumstances and that Complainant used CW1 as his spokesperson.
RAC maintained that CW1 indicated that she and Complainant would take
the paperwork, complete it, and return it to the Office.
The Agency concluded that the evidence established that when Complainant
went to the EEO Office without an appointment on April 21, 2009, CW1
was effectively acting as his sign language interpreter. That meeting
was essentially to document Complainant's visit to the EEO Office and to
ascertain the purpose for his visit, which CW1 communicated to the EEO
staff present. The evidence further established that a sign language
interpreter needed to be requested in advance and that Complainant could
have a sign language interpreter arranged for him when he returned for
his intake interview. Thus, the Agency concluded that Complainant
had provided insufficient evidence to support his claim that he was
not accommodated during his visit to the EEO Office. As a result, the
Agency determined that Complainant had not been denied an accommodation
in violation of the Rehabilitation Act.
CONTENTIONS ON APPEAL
On appeal, Complainant alleges that this is not an isolated occurrence;
rather, it is the most recent occurrence of the Agencyâs denial of the
benefits and privileges of employment. Further, Complainant contends
that the Agency mischaracterized his interaction with the EEO Office
as that of satisfaction and not of consternation and frustration
at the fact that no accommodation was provided or made available.
Finally, Complainant argues that CW1âs involvement did not negate
the Agencyâs obligation to provide him reasonable accommodation.
Accordingly, Complainant requests that the Commission reverse the FAD.
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 Agencyâs 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
(EEO MD-110), at 9-15 (Nov. 9, 1999) (explaining that the de novo
standard of review ârequires that the Commission examine the record
without regard to the factual and legal determinations of the previous
decision maker,â and that EEOC âreview 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 lawâ).
ANALYSIS AND FINDINGS
Under the Commission's regulations, an Agency is required to make
reasonable accommodation to the known physical and mental limitations
of an otherwise qualified individual with a disability unless the agency
can show that accommodation would cause an undue hardship. 29 C.F.R. §
1630.9. The Rehabilitation Act of 1973 prohibits discrimination against
qualified disabled individuals. See 29 C.F.R. § 1630. In order
to establish disability discrimination, complainant must show that:
(1) he is an individual with a disability, as defined by 29 C.F.R. §
1630.2(g); (2) he is a qualified individual with a disability pursuant
to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide a
reasonable accommodation. It is undisputed that Complainant is a
qualified individual with a disability under the Rehabilitation Act.
An employer should respond expeditiously to a request for reasonable
accommodation. EEOC Enforcement Guidance on Reasonable Accommodation and
Undue Hardship Under the Americans with Disabilities Act, at question 10
(Oct. 17, 2002). If the employer and the individual with a disability
need to engage in an interactive process, this too should proceed as
quickly as possible. Id. Similarly, the employer should act promptly
to provide the reasonable accommodation. Id. Unnecessary delays can
result in a violation of the Rehabilitation Act. Id. In determining
whether there has been an unnecessary delay in responding to a request
for reasonable accommodation, relevant factors would include: (1)
the reason(s) for delay, (2) the length of the delay, (3) how much
the individual with a disability and the employer each contributed to
the delay, (4) what the employer was doing during the delay, and (5)
whether the required accommodation was simple or complex to provide.
Id. at n. 38.
The Commission has held that for a severely hearing impaired employee who
can sign, reasonable accommodation, at a minimum, requires providing an
interpreter for safety talks, discussions on work procedures, policies
or assignments, and for every disciplinary action so that the employee
can understand what is occurring at any and every crucial time in his
employment career, whether or not he asks for an interpreter. See Feris
v. Envtl. Prot. Agency, EEOC Appeal No. 01934828 (Aug. 10, 1995),
request for reconsideration denied, EEOC Request No. 05950936 (July 19,
1996) (citing Bradley v. U.S. Postal Serv., EEOC Request No. 05920167
(Mar. 26, 1992); Jackson v. U.S. Postal Serv., EEOC Request No. 05880750
(Apr. 18, 1989)).
Based on a review of the entire record in this case, the Commission finds
that Complainant has not established that the Agency failed to provide
reasonable accommodation. Specifically, the record evidence reveals that
Complainantâs walk-in visit to the EEO Office was of his own volition
and was neither required nor controlled by the Agency. As such, the
Agencyâs obligation was to provide Complainant an interpreter within a
reasonable period of time of his request. The Commission finds that there
is no evidence in the record indicating that the Agency was unwilling to
provide Complainant an interpreter within a reasonable time. Complainant
conceded that he knew before visiting the EEO Office that there was
no full-time interpreter available. The record reveals that during
Complainantâs visit, he and CW1 were informed that an interpreter could
be obtained for his next visit. Complainant has presented no evidence
contradicting the Agencyâs willingness to provide an interpreter.
Thus, there is no evidence suggesting that Complainant was deprived of
a benefit or privilege of his employment. Under these circumstances,
the Commission finds that Complainant has not demonstrated that he was
denied reasonable accommodation.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the FAD because
the preponderance of the evidence of record does not establish that
discrimination occurred.
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 (Nov. 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
January 19, 2012
Date
1 Complainant claimed that the incident occurred on April 23, 2009,
while Agency witnesses stated that the date was actually April 21, 2009.
------------------------------------------------------------
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357 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120140967.r.txt | 0120140967.r.txt | TXT | text/plain | 16,636 | December 9, 2008 | Appeal Number: 0120140967
Background:
On December 9, 2008, Complainant and the Agency entered into a settlement agreement to resolved a matter pursued in the EEO complaint process. The settlement agreement provided, in pertinent part, that:
..........
2.b. Change her first-line supervisor from [supervisor] to [supervisor].
..........
2.e. [Agency representative] specifically, will notify [Complainant] if anyone reports to him that she is sleeping on the job and will bring her into and include her in such discussion.
By letter to the Agency dated November 4, 2013, Complainant alleged that the Agency breached provisions 2.b. and 2.e. of the settlement agreement. Complainant alleged further that she was subjected to harassment and a hostile work environment.1
In its December 2, 2013 final decision, the Agency determined that upon receipt of Complainant's email correspondence dated November 16, 2013, indicating that she had decided to withdraw her breach allegations, the subject breach allegations were administratively closed.
Complainant, on appeal, argued that the Agency improperly determined that she withdrew her breach allegations. Specifically, Complainant stated that during the week of November 4, 2013, she learned that her supervisor would be returning and that a named female supervisor would be her new supervisor. Complainant believed that these actions "to be a violation of the Settlement Agreement. [Current supervisor] was still her supervisor until the day he retired, unless [Complainant] and [current supervisor] agreed on a replacement before he retired. Further, the language of the Settlement Agreement required the re-opening of negotiations for [Complainant's] replacement. Finally [Complainant has a current EEO charge involving [Agency official's] questionable selection for the position he now holds. Based on Settlement Agreement, Section 11 and 29 CFC Part 1614.504, [Complainant] filed a breach complaint...[Complainant] also filed an informal EEO complaint regarding the breach."
Further, Complainant stated that on November 15, 2013, she contacted the EEO Specialist "about the breach. [Complainant] wanted to find out what was needed by [EEO Specialist's] office regarding the breach allegations...[Complainant] also wanted to find out how to proceed with meeting the Office of the Secretary of Transportation...[Complainant] also indicated during the discussion that an EEO Informal Complaint had been initiated to file a claim based on the breach of the Agreement. [EEO Specialist's] response was that there was no need to file any report with DOCR; but instead, to work with the Agency to come to a negotiated agreement and/or to amend the Settlement Agreement within specified 35 days noted in the response notice."
Complainant stated as the discussion continued, the EEO Specialist told her that a "'new' charge (her words) was not the procedure to file a breach charge, because in filing a breach charge the existing charges of the Settlement Agreement would be the basis for the charge. Based on what [EEO Specialist] told [Complainant], [Complainant] withdrew the informal charge." Furthermore, Complainant stated that she only requested that the EEO counseling part in her EEO complaint number 2014-25356-FTA be withdrawn but that her breach allegation be continued.
Finally, Complainant states that the Agency "took the language of [Complainant's] withdrawal and used it to its advantage by overreaching her intent while fulfilling its desire to have the breach complaint disappear. Based on the clear intent of [Complainant], she respectfully requests that the breach claim be re-opened."
The record contains a copy of Complainant's attorney's email correspondence dated November 16, 2013 to the Director, Office of Civil Rights. Therein, Complainant's attorney stated that he and Complainant "filed a claim regarding issues involving the breach of an active Settlement Agreement. The assigned EEO Counselor was [EEO Counselor]. However, at this time, we wish to withdraw the charge and cancel all EEO discussions. If possible, we respectfully request that any shared electronic document files be destroyed. If this is not possible, we request that those files be kept in strictest confidence."
The record also contains a copy of the EEO Specialist's email correspondence dated December 12, 2013 to Complainant's attorney. Therein, the EEO Specialist stated that on November 15, 2013, Complainant contacted her by phone "stating that she had just called her attorney regarding the breach that the Agency is working to resolve. As she discussed her breach allegations, she referred to it as a 'new' complaint. I informed her that she was not filing a 'new' complaint, she has filed a breach allegation. I asked her since she stated a 'new' complaint, whether she had additional complaint activity. She stated that she has another complaint which is currently at the hearing stage. She further stated that the FTA does not care about what is going on. The supervisor who the FTA wants to substitute is the supervisor named in the complaint at the hearing stage. Her attorney told her to call me to find out what she should do. I told her she needs to consult with her attorney and they need to work with the FTA Attorney...to determine whether they can reach resolution to amend the settlement. If not, S-342 will issue a decision. She will have the right to appeal the decision."
Further, the EEO Specialist noted that by email dated November 16, 2013 to the Director, Office of Civil Rights, Complainant requested that her breach allegation be withdrawn. The EEO Specialist stated that on December 2, 2013, the Agency sent a letter to Complainant notifying her that they were in receipt of her November 16, 2013 email "requesting to withdraw the breach allegation. Therefore, the breach allegations were administratively closed. Based on the above-referenced information, a new EEO claim was never raised by [Complainant's attorney] or [Complainant] with our office."
The instant appeal followed.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.504(a) provides that any settlement agreement knowingly and voluntarily agreed to by the parties, reached at any stage of the complaint process, shall be binding on both parties. The Commission has held that a settlement agreement constitutes a contract between the employee and the Agency, to which ordinary rules of contract construction apply. See Herrington v. Dep't of Def., EEOC Request No. 05960032 (December 9, 1996). The Commission has further held that it is the intent of the parties as expressed in the contract, not some unexpressed intention, that controls the contract's construction. Eggleston v. Dep't of Veterans Affairs, EEOC Request No. 05900795 (August 23, 1990). In ascertaining the intent of the parties with regard to the terms of a settlement agreement, the Commission has generally relied on the plain meaning rule. See Hyon O v. U.S. Postal Serv., EEOC Request No. 05910787 (December 2, 1991). This rule states that if the writing appears to be plain and unambiguous on its face, its meaning must be determined from the four corners of the instrument without resort to extrinsic evidence of any nature. See Montgomery Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
Upon review of the record, the Commission dismisses the instant appeal. Complainant withdrew her breach allegations because she claimed there was confusion about alleging breach of the instant agreement and filing a separate EEO complaint. However, we note that the record contains a copy of Complainant's attorney's email correspondence dated November 16, 2013 to the Director, Office of Civil Rights. Therein, Complainant's attorney stated that he and Complainant "filed a claim regarding issues involving the breach of an active Settlement Agreement. The assigned EEO Counselor was [EEO Counselor]. However, at this time, we wish to withdraw the charge and cancel all EEO discussions. If possible, we respectfully request that any shared electronic document files be destroyed. If this is not possible, we request that those files be kept in strictest confidence."
Consequently, we find that Complainant validly withdrew her breach allegations, depriving the Commission of jurisdiction over the matter. The record indicates that there was no evidence reflecting that the Agency misled Complainant into withdrawing her breach allegations. | Complainant,
v.
Anthony Foxx,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120140967
Agency No. 2008-22034-FTA-05
DISMISS
Complainant filed a timely appeal with this Commission regarding her request to withdraw a breach claim regarding a December 9, 2008 settlement agreement. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405.
BACKGROUND
On December 9, 2008, Complainant and the Agency entered into a settlement agreement to resolved a matter pursued in the EEO complaint process. The settlement agreement provided, in pertinent part, that:
..........
2.b. Change her first-line supervisor from [supervisor] to [supervisor].
..........
2.e. [Agency representative] specifically, will notify [Complainant] if anyone reports to him that she is sleeping on the job and will bring her into and include her in such discussion.
By letter to the Agency dated November 4, 2013, Complainant alleged that the Agency breached provisions 2.b. and 2.e. of the settlement agreement. Complainant alleged further that she was subjected to harassment and a hostile work environment.1
In its December 2, 2013 final decision, the Agency determined that upon receipt of Complainant's email correspondence dated November 16, 2013, indicating that she had decided to withdraw her breach allegations, the subject breach allegations were administratively closed.
Complainant, on appeal, argued that the Agency improperly determined that she withdrew her breach allegations. Specifically, Complainant stated that during the week of November 4, 2013, she learned that her supervisor would be returning and that a named female supervisor would be her new supervisor. Complainant believed that these actions "to be a violation of the Settlement Agreement. [Current supervisor] was still her supervisor until the day he retired, unless [Complainant] and [current supervisor] agreed on a replacement before he retired. Further, the language of the Settlement Agreement required the re-opening of negotiations for [Complainant's] replacement. Finally [Complainant has a current EEO charge involving [Agency official's] questionable selection for the position he now holds. Based on Settlement Agreement, Section 11 and 29 CFC Part 1614.504, [Complainant] filed a breach complaint...[Complainant] also filed an informal EEO complaint regarding the breach."
Further, Complainant stated that on November 15, 2013, she contacted the EEO Specialist "about the breach. [Complainant] wanted to find out what was needed by [EEO Specialist's] office regarding the breach allegations...[Complainant] also wanted to find out how to proceed with meeting the Office of the Secretary of Transportation...[Complainant] also indicated during the discussion that an EEO Informal Complaint had been initiated to file a claim based on the breach of the Agreement. [EEO Specialist's] response was that there was no need to file any report with DOCR; but instead, to work with the Agency to come to a negotiated agreement and/or to amend the Settlement Agreement within specified 35 days noted in the response notice."
Complainant stated as the discussion continued, the EEO Specialist told her that a "'new' charge (her words) was not the procedure to file a breach charge, because in filing a breach charge the existing charges of the Settlement Agreement would be the basis for the charge. Based on what [EEO Specialist] told [Complainant], [Complainant] withdrew the informal charge." Furthermore, Complainant stated that she only requested that the EEO counseling part in her EEO complaint number 2014-25356-FTA be withdrawn but that her breach allegation be continued.
Finally, Complainant states that the Agency "took the language of [Complainant's] withdrawal and used it to its advantage by overreaching her intent while fulfilling its desire to have the breach complaint disappear. Based on the clear intent of [Complainant], she respectfully requests that the breach claim be re-opened."
The record contains a copy of Complainant's attorney's email correspondence dated November 16, 2013 to the Director, Office of Civil Rights. Therein, Complainant's attorney stated that he and Complainant "filed a claim regarding issues involving the breach of an active Settlement Agreement. The assigned EEO Counselor was [EEO Counselor]. However, at this time, we wish to withdraw the charge and cancel all EEO discussions. If possible, we respectfully request that any shared electronic document files be destroyed. If this is not possible, we request that those files be kept in strictest confidence."
The record also contains a copy of the EEO Specialist's email correspondence dated December 12, 2013 to Complainant's attorney. Therein, the EEO Specialist stated that on November 15, 2013, Complainant contacted her by phone "stating that she had just called her attorney regarding the breach that the Agency is working to resolve. As she discussed her breach allegations, she referred to it as a 'new' complaint. I informed her that she was not filing a 'new' complaint, she has filed a breach allegation. I asked her since she stated a 'new' complaint, whether she had additional complaint activity. She stated that she has another complaint which is currently at the hearing stage. She further stated that the FTA does not care about what is going on. The supervisor who the FTA wants to substitute is the supervisor named in the complaint at the hearing stage. Her attorney told her to call me to find out what she should do. I told her she needs to consult with her attorney and they need to work with the FTA Attorney...to determine whether they can reach resolution to amend the settlement. If not, S-342 will issue a decision. She will have the right to appeal the decision."
Further, the EEO Specialist noted that by email dated November 16, 2013 to the Director, Office of Civil Rights, Complainant requested that her breach allegation be withdrawn. The EEO Specialist stated that on December 2, 2013, the Agency sent a letter to Complainant notifying her that they were in receipt of her November 16, 2013 email "requesting to withdraw the breach allegation. Therefore, the breach allegations were administratively closed. Based on the above-referenced information, a new EEO claim was never raised by [Complainant's attorney] or [Complainant] with our office."
The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.504(a) provides that any settlement agreement knowingly and voluntarily agreed to by the parties, reached at any stage of the complaint process, shall be binding on both parties. The Commission has held that a settlement agreement constitutes a contract between the employee and the Agency, to which ordinary rules of contract construction apply. See Herrington v. Dep't of Def., EEOC Request No. 05960032 (December 9, 1996). The Commission has further held that it is the intent of the parties as expressed in the contract, not some unexpressed intention, that controls the contract's construction. Eggleston v. Dep't of Veterans Affairs, EEOC Request No. 05900795 (August 23, 1990). In ascertaining the intent of the parties with regard to the terms of a settlement agreement, the Commission has generally relied on the plain meaning rule. See Hyon O v. U.S. Postal Serv., EEOC Request No. 05910787 (December 2, 1991). This rule states that if the writing appears to be plain and unambiguous on its face, its meaning must be determined from the four corners of the instrument without resort to extrinsic evidence of any nature. See Montgomery Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
Upon review of the record, the Commission dismisses the instant appeal. Complainant withdrew her breach allegations because she claimed there was confusion about alleging breach of the instant agreement and filing a separate EEO complaint. However, we note that the record contains a copy of Complainant's attorney's email correspondence dated November 16, 2013 to the Director, Office of Civil Rights. Therein, Complainant's attorney stated that he and Complainant "filed a claim regarding issues involving the breach of an active Settlement Agreement. The assigned EEO Counselor was [EEO Counselor]. However, at this time, we wish to withdraw the charge and cancel all EEO discussions. If possible, we respectfully request that any shared electronic document files be destroyed. If this is not possible, we request that those files be kept in strictest confidence."
Consequently, we find that Complainant validly withdrew her breach allegations, depriving the Commission of jurisdiction over the matter. The record indicates that there was no evidence reflecting that the Agency misled Complainant into withdrawing her breach allegations. Accordingly, Complainant's appeal regarding the withdrawal of the breach claim is hereby DISMISSED.
However, based on a fair reading of the record, we determine that apart from the above referenced breach claim, Complainant is also arguably attempting to pursue the EEO complaint process regarding new incidents of alleged harassment that had not been resolved in the subject settlement agreement. Accordingly, to the extent that Complainant has pursued the EEO complaint process on new claims of harassment, we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency is ORDERED to take the following action:
1. Within thirty (30) calendar days from the date that this decision becomes final, the agency shall take the following action: continue processing any new incidents of harassment, that were not resolved in the instant settlement agreement, from the point where processing ceased. The Agency shall acknowledge to Complainant that it has resumed processing the remanded claims.
The Agency shall submit a report regarding the ordered action to the Compliance Officer in accordance with the paragraph 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 (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 (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 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 (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
May 16, 2014
__________________
Date
1 In this letter, Complainant also makes reference to breach of provision 1(a), which provides no affirmative Agency obligation, but is merely a recitation of the claims that Complainant had raised in the underlying complaint (that Complainant "was subjected to a hostile work environment harassment)." We consider this reference not to relate to a substantive breach claim.
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358 | https://www.eeoc.gov/sites/default/files/decisions/2021_08_16/2020004133.pdf | 2020004133.pdf | PDF | application/pdf | 16,464 | Alvaro M,1 Complainant, v. Wilbur L. Ross, Jr., Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency. | February 19, 2020 | Appeal Number: 2020004133
Background:
At the time of events giving rise to this complaint, Complainant was employed by the Agency as
Chief of the Operations, Management and Information Division, or Executive Officer, for the
Pacific Islands Regional Office (“PIRO”) of the Agency’s National Marine Fisheries Service
(“NMFS”) , located in Honolulu, H awaii.
On January 3, 2020, Complainant filed a formal complaint alleging that he had been subjected to
reprisal for prior protected EEO activity (witness in EEO and Inspector General investigations ),
when: on July 30, 2019, his supervisor (“S1”) , issued him a Letter of Reprimand (“LOR”) to be
held in hi s Employee File for 2 years .
On August 2, 2019, Complainant contacted an EEO Counselor at the Agency’s Office of Inclusion
and Civil Rights (“OICR”) , alleging that S1 subjected him to a hostile work environment and
issued the July 30, 2019 LOR in retaliation for his prior protected EEO activity . The EEO
Counselor began pre -complaint processing, and the matter was assigned Agency Case No.
54201900378 (“Complaint 1”) .
On or about August 8, 2019, Complainant discussed his options with his EEO Counselor, and informed her that he decided to pursue an informal grievance on the LOR rather than an EEO
action. In a follow up email, the EEO Counselor provided Complainant with a Withdrawal Notice to sign and return to OICR . Upon reading the Withdrawal Notice, Complainant became aware that
his informal counseling session on August 2, 2019, resulted in Complaint 1 , which was assigned
a case number and listed the July 30, 2019 LOR as one of his retaliation claims .
On or about August 14, 2019, Complainant signed and submitted the Withdrawal Notice for
Complaint 1 to the OICR. Prominently located within the Withdrawal Notic e was a list in bu lleted
format, using bold for emphasis , explaining that by signing the Withdrawal Notice, Complainant
was confirming that he did so “ voluntarily and without coercion.” It also explained that “[a]ll
actions related to addressing and processing the allegatio ns of discrimination identified with
[Complaint 1 ] will cease, and once withdrawn, [Complaint 1] “cannot be reinstated.” Then he
submitted an informal grievance to S1 in accordance with the Agency’s policy “Administrative
Grievance Procedure.” S1 did not respond. On September 12, 2019, the last possible day to timely initiate an EEO Complaint for an allegation
of discrimination that allegedly occurred on July 30, 2019, Complainant withdrew his informal
grievance on the July 30, 2019 LOR and initiated the instant complaint with the EEO Counselor.
He notified S1 in an email that he specifically intended to pursue the LOR in an EEO Complaint. The Agency dismissed the matter pursuant to 29 C.F.R. § 1614.107(a )(1) for failure to state a
claim , because Complainant raised the same claim in Complaint 1. The instant appeal followed.
Legal Analysis:
The Commission's federal s ector 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.
Dep’t of the Air Force, EEOC Request No. 05931049 (A pr. 21, 1994). If the complainant cannot
establish that she is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1).
Same Claim
Under 29 C.F.R. § 1614.107(a)(1) a complaint that states the same claim that is pending before or
has been decided by the Commission or the Agency shall be dismissed . To be dismissed as the
"same claim," the present formal complaint and prior complaint must have involved identical
matters. The Commission has consistently held that in order for a formal complaint to be dismissed
as identical, the elements of the complaint must be identical to the elements of the prior complaint in time, place, incident, and parties. See Jackson v. Unite d Sta tes Postal Serv. , EEOC Appeal No.
01955890 (Apr. 5, 1996).
In the instant case, neither the Agency nor the Commission issued a decision on the matter because Complainant withdrew Complaint 1 during the pre -complaint phase . However, we have previously
held that a once a complainant has withdrawn an informal complaint, absent a showing of coercion,
the complainant may not reactivate the EEO process by filing a formal complaint on the same issue. See Allen v. Dep ’t of Def ., EEOC Reques t No. 05940168 (May 25, 1995).
On appeal, Complainant argues that the Agency erred in determining that he signed and submitted a Withdrawal Notice for Complaint 1 voluntarily and without coercion because he was “under the
impression” that he could pursue an EEO Complaint if the informal grievance “did not work out.” Alternately, Complainant argues that he signed the Withdrawal Notice “reluctantly” in order to preserve his ability to pursue a grievance. Neither of these explanations describes coercion.
Complainant does not dispute that he signed and submitted the Withdrawal Notice, and that he
was aware that it stated that withdrawing Complaint 1 would bar him from raising the same
complaint again. Likewise, Complainant has not provided evidence that he signed the Withdrawal
Notice because he was misled by the EEO Officer. If Complainant felt “reluctant” or he noticed
that the terms on the Withdrawal Notice were incongruent with his “impression ” of the EEO
proces s, his EEO counselor offered to answer any questions Complainant had when she sent him
the Withdrawal Notice to sign .
Alternately, Complainant argues that the allegation in the instant complaint is not identical to the
claim in Complaint 1 . Rather, he argues that the “true nexus” of t his complaint was that S1 failed
to respond to his informal grievance “within the proscribed time frames as per agency policy DAO
202-771 Section 7(h) (Administrative Grievance Procedure) … which caused [him] additional
harm and violated [his] due process rights. ” He recounts that before withdrawing his informal
grievance, he consulted with his EEO Counselor and she informed him that he could pursue a new EEO complaint because S1’s failure to respond to the informal grievance was a new retaliatory
act.
The Agency provided sufficient evidence to support that the instant complaint and Complaint 1 raise identical issues. Complainant’s Formal Complaint and the pre -complaint documents reflect
that the LOR itself, not S1’s failure to respond to the Au gust 12, 2019 informal grievance arising
from the LOR, is the alleged retaliatory act at issue in this complaint.
The only reference Complainant makes in the record to S1’s failure to respond to his informal
grievance is in the context of his explanation for (re)initiating an EEO complaint on the matter of
the July 30, 2019 LOR. Also, Complainant expressly stated his intent to pursue an EEO Complaint
on the July 30, 2019 LOR in the contemporaneous email he sent to S1 withdrawing his inf ormal
grievance.
Collateral Attack & Improper Forum
It is well established that the EEO process cannot be used to lodge a collateral attack against
another proceeding. 29 C.F.R. § 1614.107(a)(1). "A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum's proceeding, such as the grievance process, the unemployment compensation process, or the workers' compensation process." See Lingad v. United States Postal Serv. , EEOC Request No. 05930106 (June 25, 1993) , Kleinman v.
United States Postal Serv. , EEOC Request No. 05940585 (Sept. 22, 1994); Wills v. Dep't of Def.,
EEOC Request No. 05970596 (July 30, 1998).
Because it is the focus of much of his argument, we note that Complainant’s emphatic assertion that S1 violated Agency guidance under its Administrative Order 202- 771 Section 7.01(h), which
provides that a response is required within 15 days of receipt of an informal grievance, is irrelevant to this decision . To the extent he is seeking enforcement of Agency pol icy, Complainant’s
argument amounts to an impermissible collateral attack . See, e.g. Complainant v. Dep't of
Homeland Sec. , EEOC Appeal No. 0120142347 (Nov. 5, 2014) (dismissing the complainant’s
EEO complaint alleging that the Agency would not comply with a grievance decision as a collateral attack). The proper forum to raise a violation of an Agency Administrative Order would
be provided within the Order itself.
Dissatisfaction with Complaint Processing Under 29 C.F.R. § 1614.107(a)(8) , 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. The
MD-110 provides that "spin -off" complaints should be referred to the agency official responsible
for complaint processing and/or processed as part of the original complaint. On appeal, Complainant raises allegations about the processing of Complaint 1. For in stance, he
felt that “a case file should never have been opened” and that the Agency “set him up for failure”
by assigning Complaint 1 a case number after his initial interview but prior to an investigation of
his allegation. He also alleged that he learned that the EEO Counselor did not take any action, such
as contacting his supervisor , after the initial interview .
Such allegations should have been raised
with the agency official responsible for complaint processing.
Relevant to the instant comp laint, Complainant argues that the Commission should disregard the
signed Withdrawal Notice, he submitted for Complaint 1 because the allegations had not yet been
investigated and should not have been assigned an EEO Case Number to begin with .
Complainant did not identify any EEOC guidance or regulatory provision t o support this theory .
We reiterate that Complainant signed and submitted the Withdrawal Notice voluntarily and
without coercion. Although he was surprised to see that Complaint 1 was assigned a complaint
number and identified claims, when he received the Withdrawal Notice, Complainant was
ultimately aware of these developments when he decided to sign and submit the Withdrawal Notice.
The Agency properly dismissed Complainant’s Complaint for stating the same claim raised in a previous complaint. | Alvaro M,1
Complainant,
v.
Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce
(National Oceanic & Atmospheric Administration),
Agency.
Appeal No. 2020004133
Agency No. 54201900474
DECISION
Complainant timely appealed with the Equal Employment Opportunity Commission ( “EEOC ” or
“Commission ”) from the Agency's February 19, 2020 dismissal of 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as
Chief of the Operations, Management and Information Division, or Executive Officer, for the
Pacific Islands Regional Office (“PIRO”) of the Agency’s National Marine Fisheries Service
(“NMFS”) , located in Honolulu, H awaii.
On January 3, 2020, Complainant filed a formal complaint alleging that he had been subjected to
reprisal for prior protected EEO activity (witness in EEO and Inspector General investigations ),
when: on July 30, 2019, his supervisor (“S1”) , issued him a Letter of Reprimand (“LOR”) to be
held in hi s Employee File for 2 years .
On August 2, 2019, Complainant contacted an EEO Counselor at the Agency’s Office of Inclusion
and Civil Rights (“OICR”) , alleging that S1 subjected him to a hostile work environment and
issued the July 30, 2019 LOR in retaliation for his prior protected EEO activity . The EEO
Counselor began pre -complaint processing, and the matter was assigned Agency Case No.
54201900378 (“Complaint 1”) .
On or about August 8, 2019, Complainant discussed his options with his EEO Counselor, and informed her that he decided to pursue an informal grievance on the LOR rather than an EEO
action. In a follow up email, the EEO Counselor provided Complainant with a Withdrawal Notice to sign and return to OICR . Upon reading the Withdrawal Notice, Complainant became aware that
his informal counseling session on August 2, 2019, resulted in Complaint 1 , which was assigned
a case number and listed the July 30, 2019 LOR as one of his retaliation claims .
On or about August 14, 2019, Complainant signed and submitted the Withdrawal Notice for
Complaint 1 to the OICR. Prominently located within the Withdrawal Notic e was a list in bu lleted
format, using bold for emphasis , explaining that by signing the Withdrawal Notice, Complainant
was confirming that he did so “ voluntarily and without coercion.” It also explained that “[a]ll
actions related to addressing and processing the allegatio ns of discrimination identified with
[Complaint 1 ] will cease, and once withdrawn, [Complaint 1] “cannot be reinstated.” Then he
submitted an informal grievance to S1 in accordance with the Agency’s policy “Administrative
Grievance Procedure.” S1 did not respond. On September 12, 2019, the last possible day to timely initiate an EEO Complaint for an allegation
of discrimination that allegedly occurred on July 30, 2019, Complainant withdrew his informal
grievance on the July 30, 2019 LOR and initiated the instant complaint with the EEO Counselor.
He notified S1 in an email that he specifically intended to pursue the LOR in an EEO Complaint. The Agency dismissed the matter pursuant to 29 C.F.R. § 1614.107(a )(1) for failure to state a
claim , because Complainant raised the same claim in Complaint 1. The instant 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 or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal s ector 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.
Dep’t of the Air Force, EEOC Request No. 05931049 (A pr. 21, 1994). If the complainant cannot
establish that she is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1).
Same Claim
Under 29 C.F.R. § 1614.107(a)(1) a complaint that states the same claim that is pending before or
has been decided by the Commission or the Agency shall be dismissed . To be dismissed as the
"same claim," the present formal complaint and prior complaint must have involved identical
matters. The Commission has consistently held that in order for a formal complaint to be dismissed
as identical, the elements of the complaint must be identical to the elements of the prior complaint in time, place, incident, and parties. See Jackson v. Unite d Sta tes Postal Serv. , EEOC Appeal No.
01955890 (Apr. 5, 1996).
In the instant case, neither the Agency nor the Commission issued a decision on the matter because Complainant withdrew Complaint 1 during the pre -complaint phase . However, we have previously
held that a once a complainant has withdrawn an informal complaint, absent a showing of coercion,
the complainant may not reactivate the EEO process by filing a formal complaint on the same issue. See Allen v. Dep ’t of Def ., EEOC Reques t No. 05940168 (May 25, 1995).
On appeal, Complainant argues that the Agency erred in determining that he signed and submitted a Withdrawal Notice for Complaint 1 voluntarily and without coercion because he was “under the
impression” that he could pursue an EEO Complaint if the informal grievance “did not work out.” Alternately, Complainant argues that he signed the Withdrawal Notice “reluctantly” in order to preserve his ability to pursue a grievance. Neither of these explanations describes coercion.
Complainant does not dispute that he signed and submitted the Withdrawal Notice, and that he
was aware that it stated that withdrawing Complaint 1 would bar him from raising the same
complaint again. Likewise, Complainant has not provided evidence that he signed the Withdrawal
Notice because he was misled by the EEO Officer. If Complainant felt “reluctant” or he noticed
that the terms on the Withdrawal Notice were incongruent with his “impression ” of the EEO
proces s, his EEO counselor offered to answer any questions Complainant had when she sent him
the Withdrawal Notice to sign .
Alternately, Complainant argues that the allegation in the instant complaint is not identical to the
claim in Complaint 1 . Rather, he argues that the “true nexus” of t his complaint was that S1 failed
to respond to his informal grievance “within the proscribed time frames as per agency policy DAO
202-771 Section 7(h) (Administrative Grievance Procedure) … which caused [him] additional
harm and violated [his] due process rights. ” He recounts that before withdrawing his informal
grievance, he consulted with his EEO Counselor and she informed him that he could pursue a new EEO complaint because S1’s failure to respond to the informal grievance was a new retaliatory
act.
The Agency provided sufficient evidence to support that the instant complaint and Complaint 1 raise identical issues. Complainant’s Formal Complaint and the pre -complaint documents reflect
that the LOR itself, not S1’s failure to respond to the Au gust 12, 2019 informal grievance arising
from the LOR, is the alleged retaliatory act at issue in this complaint.
The only reference Complainant makes in the record to S1’s failure to respond to his informal
grievance is in the context of his explanation for (re)initiating an EEO complaint on the matter of
the July 30, 2019 LOR. Also, Complainant expressly stated his intent to pursue an EEO Complaint
on the July 30, 2019 LOR in the contemporaneous email he sent to S1 withdrawing his inf ormal
grievance.
Collateral Attack & Improper Forum
It is well established that the EEO process cannot be used to lodge a collateral attack against
another proceeding. 29 C.F.R. § 1614.107(a)(1). "A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum's proceeding, such as the grievance process, the unemployment compensation process, or the workers' compensation process." See Lingad v. United States Postal Serv. , EEOC Request No. 05930106 (June 25, 1993) , Kleinman v.
United States Postal Serv. , EEOC Request No. 05940585 (Sept. 22, 1994); Wills v. Dep't of Def.,
EEOC Request No. 05970596 (July 30, 1998).
Because it is the focus of much of his argument, we note that Complainant’s emphatic assertion that S1 violated Agency guidance under its Administrative Order 202- 771 Section 7.01(h), which
provides that a response is required within 15 days of receipt of an informal grievance, is irrelevant to this decision . To the extent he is seeking enforcement of Agency pol icy, Complainant’s
argument amounts to an impermissible collateral attack . See, e.g. Complainant v. Dep't of
Homeland Sec. , EEOC Appeal No. 0120142347 (Nov. 5, 2014) (dismissing the complainant’s
EEO complaint alleging that the Agency would not comply with a grievance decision as a collateral attack). The proper forum to raise a violation of an Agency Administrative Order would
be provided within the Order itself.
Dissatisfaction with Complaint Processing Under 29 C.F.R. § 1614.107(a)(8) , 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. The
MD-110 provides that "spin -off" complaints should be referred to the agency official responsible
for complaint processing and/or processed as part of the original complaint. On appeal, Complainant raises allegations about the processing of Complaint 1. For in stance, he
felt that “a case file should never have been opened” and that the Agency “set him up for failure”
by assigning Complaint 1 a case number after his initial interview but prior to an investigation of
his allegation. He also alleged that he learned that the EEO Counselor did not take any action, such
as contacting his supervisor , after the initial interview .
Such allegations should have been raised
with the agency official responsible for complaint processing.
Relevant to the instant comp laint, Complainant argues that the Commission should disregard the
signed Withdrawal Notice, he submitted for Complaint 1 because the allegations had not yet been
investigated and should not have been assigned an EEO Case Number to begin with .
Complainant did not identify any EEOC guidance or regulatory provision t o support this theory .
We reiterate that Complainant signed and submitted the Withdrawal Notice voluntarily and
without coercion. Although he was surprised to see that Complaint 1 was assigned a complaint
number and identified claims, when he received the Withdrawal Notice, Complainant was
ultimately aware of these developments when he decided to sign and submit the Withdrawal Notice.
The Agency properly dismissed Complainant’s Complaint for stating the same claim raised in a previous complaint.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED .
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Commission may, in its discretion, rec onsider 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 th is 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 rec eipt 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 reconsideration. The Commissio n 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 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 signature
Carlton M. Hadden, Director
Office of Federal Operations
January 6, 2021
Date | [
"Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (A pr. 21, 1994)",
"Jackson v. Unite d Sta tes Postal Serv., EEOC Appeal No. 01955890 (Apr. 5, 1996)",
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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 br ief 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 dismiss al of the p arty’s request for
reconsideration as untimely, unless extenuating circumstances preven ted the timely filing of the
request. Any supporting documentation must be submitted together with the request for
reconsideration. The Commission will cons ider reques ts for reconsideration filed after the
deadline only in very limited circumstances. Se e 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 wi thin
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 t heir full n ame 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 l ocal 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 p ermission 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 re quests 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 (plea se 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
June 11, 2024
Date | [
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360 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/05A50530.txt | 05A50530.txt | TXT | text/plain | 17,717 | Rick W. McGilton, et. al. v. Department of the Air Force 05A50530 . Rick W. McGilton, et. al., Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency. | January 13, 2005 | Appeal Number: 01A30538
Background:
By letter dated January 21, 1998, complainant, an Equal Employment
Specialist, wrote to the agency's Deputy Chief of Staff for Personnel
regarding concerns about the impact of a new career program on
the agency's EEO staff. The Deputy Chief of Staff responded to
complainant's concerns in a letter dated March 1998. Thereafter, in
correspondence dated November 6, 1999, addressed to the Secretary of
Defense, complainant raised his concerns regarding the Personnel Civilian
Career Program. In complainant's November 6, 1999 letter, complainant
requested EEO counseling to resolve his concerns. Informal efforts to
resolve complainant's concerns were unsuccessful and complainant filed
a formal EEO complaint..
In his formal complaint (identified by the agency as Agency
No. WE1M00045), complainant claimed that he was the victim of unlawful
employment discrimination in reprisal for prior EEO activity when:
1. he received a letter, dated January 5, 1998, regarding a change in the
agency's career program structure and the establishment of the Personnel
Civilian Career Program;
2. On September 17, 1999, he improperly received a C rating;
3. he was not provided due process in the processing of his EEO claim
and agency officials interfered in the processing of his complaint by
not referring informal counseling to the Department of Defense, which
denied him prompt and impartial complaint processing;
4. and he was not selected for an EEO Manager position in January 2000.
Thereafter, complainant expressed interest in having the individual
complaint certified as a class complaint. Complainant stated that
the development of the Personnel Civilian Career Program, affected an
entire class of EEO staff. An EEOC Administrative Judge (AJ) granted
complainant's request to have the career program issue [claim (1)]
addressed as a class complaint (captioned herein as Agency No. WE1M00045,
Hearing No. 100-A2-8056X).
The agency filed a motion for summary judgment on the remaining issues in
the individual complaint. The AJ issued a decision dated August 8, 2002,
on the individual complaint. Therein, the AJ noted that complainant's
motion to have claim (1) addressed as a class complaint was granted, and
that it was dismissed as an issue in the individual complaint. The AJ
then determined that regarding claims (2)-(4), the record consists of
the Agency's Motion, Complainant's Rebuttal to the Agency's Motion, and
the Investigative Report. Without further elaboration, the AJ granted
summary judgment.
In a separate decision dated September 6, 2002, on the class complaint,
the AJ found that complainant failed to seek EEO counseling in a timely
manner with respect to claim (1). Specifically, the AJ found that the
alleged discriminatory event occurred on January 5, 1998, the date of
the letter announcing the establishment of the agency's career program.
The AJ found that complainant first requested EEO counseling on November
6, 1999, approximately 22 months after the personnel action at issue.
The agency did not issue a final order on the class complaint, and the
AJ's decision procedurally dismissing the class complaint became the
agency's final decision, pursuant to 29 C.F.R. § 1614.109(i).
On September 30, 2002, the agency issued a final order on the individual
complaint ( identifying the individual complaint as Agency No. WE1M00045,
Hearing No. 100-A0-8088X, and adding a separate agency number, identified
as Agency No. AR000021354). The agency fully implemented the decision of
the AJ regarding claims (2) - (4) in the individual complaint, noting that
the AJ found that the complainant did not establish by a preponderance
of the evidence that the matters at issue were motivated by unlawful
discrimination. Complainant filed an appeal from this decision, as
well as from the procedural dismissal of his class complaint.
In our prior decision, the Commission affirmed that the agency's final
order implementing the AJ's decision to grant summary judgment in
favor of the agency with respect to the individual complaint, claims
(2)-(4). However, with respect to claim (1), the class complaint,
the Commission remanded the matter to the agency. Specifically, the
Commission stated that [t]he record discloses that on January 5, 1998,
complainant received a letter regarding a change in the agency's career
program structure and the establishment of the Personnel Civilian Career
Program.' Complainant did not initiate contact with an EEO Counselor
until November 6, 1999. However, where, as here, a complainant challenges
an alleged discriminatory seniority system, the time for challenging that
seniority system begins to run (a) when the system is adopted, (b) when an
individual is first subjected to the system, or (c) when an individual is
injured by the application of the system. See 42 U.S.C. 2000(e)-5(e)(2).
In our prior decision, the Commission determined that it was unable
to ascertain from the record when any of these three events occurred.
Therefore, the Commission remanded the matter to the agency and ordered
it to take the following actions:
The agency is ordered to supplement the record with relevant documentation
concerning the Personnel Civilian Career Program. Specifically, the
agency shall include documentation identifying when the program was
adopted, when complainant was first subjected to the program, and when
complainant was purportedly injured by the application of the program.
Within thirty (30) days of the date this decision becomes final,
the agency must forward the entire record, including all information
collected in this supplemental investigation, to the appropriate EEOC
District Office. It its letter of transmittal, the agency shall request
that an Administrative Judge be assigned to determine whether the class
should be certified for further processing in accordance with 29 C.F.R.
§ 1614.204.
The agency filed the instant request for reconsideration of this decision.
In the agency's request, the agency asserts that the Commission's
prior decision remanding the class claim (1) to the agency for further
processing was improper. Specifically, the agency states that [t]he
complained of action has absolutely no relation to seniority. The change
in policy did not alter any system of allocating benefits based on length
of service. Nor did the change in policy create a system of allocating
benefits based on length of service. Finally, the change in policy does
not alter any system which works in tandem with a system that allocates
benefits based on length of service.
In its request, the agency also states that complainant has never alleged
that his rights or benefits that rest upon seniority were altered by the
policy change. Instead, the agency asserts that complainant claimed that
agency officials were limiting the credit of EEO experience and maximizing
personnel experience through skill coding. The agency contends that the
AJ's decision dismissing claim (1) for untimely EEO counselor contact
should be affirmed.<1> | Rick W. McGilton, et. al. v. Department of the Air Force
05A50530
.
Rick W. McGilton, et. al.,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Request No. 05A50530
Appeal No. 01A30538
Agency Nos. AR000021354, WE1M00045
Hearing Nos. 100-A0-8088X, 100-A2-8056X
GRANT
The Department of the Air Force (agency) timely requested reconsideration
of the decision in Rick W. McGilton, et. al. v. Department of the Air
Force, EEOC Appeal No. 01A30538 (January 13, 2005). 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 Commission grants the
agency's request for the sole purpose of clarifying its decision in EEOC
Appeal No. 01A30538.
BACKGROUND
By letter dated January 21, 1998, complainant, an Equal Employment
Specialist, wrote to the agency's Deputy Chief of Staff for Personnel
regarding concerns about the impact of a new career program on
the agency's EEO staff. The Deputy Chief of Staff responded to
complainant's concerns in a letter dated March 1998. Thereafter, in
correspondence dated November 6, 1999, addressed to the Secretary of
Defense, complainant raised his concerns regarding the Personnel Civilian
Career Program. In complainant's November 6, 1999 letter, complainant
requested EEO counseling to resolve his concerns. Informal efforts to
resolve complainant's concerns were unsuccessful and complainant filed
a formal EEO complaint..
In his formal complaint (identified by the agency as Agency
No. WE1M00045), complainant claimed that he was the victim of unlawful
employment discrimination in reprisal for prior EEO activity when:
1. he received a letter, dated January 5, 1998, regarding a change in the
agency's career program structure and the establishment of the Personnel
Civilian Career Program;
2. On September 17, 1999, he improperly received a C rating;
3. he was not provided due process in the processing of his EEO claim
and agency officials interfered in the processing of his complaint by
not referring informal counseling to the Department of Defense, which
denied him prompt and impartial complaint processing;
4. and he was not selected for an EEO Manager position in January 2000.
Thereafter, complainant expressed interest in having the individual
complaint certified as a class complaint. Complainant stated that
the development of the Personnel Civilian Career Program, affected an
entire class of EEO staff. An EEOC Administrative Judge (AJ) granted
complainant's request to have the career program issue [claim (1)]
addressed as a class complaint (captioned herein as Agency No. WE1M00045,
Hearing No. 100-A2-8056X).
The agency filed a motion for summary judgment on the remaining issues in
the individual complaint. The AJ issued a decision dated August 8, 2002,
on the individual complaint. Therein, the AJ noted that complainant's
motion to have claim (1) addressed as a class complaint was granted, and
that it was dismissed as an issue in the individual complaint. The AJ
then determined that regarding claims (2)-(4), the record consists of
the Agency's Motion, Complainant's Rebuttal to the Agency's Motion, and
the Investigative Report. Without further elaboration, the AJ granted
summary judgment.
In a separate decision dated September 6, 2002, on the class complaint,
the AJ found that complainant failed to seek EEO counseling in a timely
manner with respect to claim (1). Specifically, the AJ found that the
alleged discriminatory event occurred on January 5, 1998, the date of
the letter announcing the establishment of the agency's career program.
The AJ found that complainant first requested EEO counseling on November
6, 1999, approximately 22 months after the personnel action at issue.
The agency did not issue a final order on the class complaint, and the
AJ's decision procedurally dismissing the class complaint became the
agency's final decision, pursuant to 29 C.F.R. § 1614.109(i).
On September 30, 2002, the agency issued a final order on the individual
complaint ( identifying the individual complaint as Agency No. WE1M00045,
Hearing No. 100-A0-8088X, and adding a separate agency number, identified
as Agency No. AR000021354). The agency fully implemented the decision of
the AJ regarding claims (2) - (4) in the individual complaint, noting that
the AJ found that the complainant did not establish by a preponderance
of the evidence that the matters at issue were motivated by unlawful
discrimination. Complainant filed an appeal from this decision, as
well as from the procedural dismissal of his class complaint.
In our prior decision, the Commission affirmed that the agency's final
order implementing the AJ's decision to grant summary judgment in
favor of the agency with respect to the individual complaint, claims
(2)-(4). However, with respect to claim (1), the class complaint,
the Commission remanded the matter to the agency. Specifically, the
Commission stated that [t]he record discloses that on January 5, 1998,
complainant received a letter regarding a change in the agency's career
program structure and the establishment of the Personnel Civilian Career
Program.' Complainant did not initiate contact with an EEO Counselor
until November 6, 1999. However, where, as here, a complainant challenges
an alleged discriminatory seniority system, the time for challenging that
seniority system begins to run (a) when the system is adopted, (b) when an
individual is first subjected to the system, or (c) when an individual is
injured by the application of the system. See 42 U.S.C. 2000(e)-5(e)(2).
In our prior decision, the Commission determined that it was unable
to ascertain from the record when any of these three events occurred.
Therefore, the Commission remanded the matter to the agency and ordered
it to take the following actions:
The agency is ordered to supplement the record with relevant documentation
concerning the Personnel Civilian Career Program. Specifically, the
agency shall include documentation identifying when the program was
adopted, when complainant was first subjected to the program, and when
complainant was purportedly injured by the application of the program.
Within thirty (30) days of the date this decision becomes final,
the agency must forward the entire record, including all information
collected in this supplemental investigation, to the appropriate EEOC
District Office. It its letter of transmittal, the agency shall request
that an Administrative Judge be assigned to determine whether the class
should be certified for further processing in accordance with 29 C.F.R.
§ 1614.204.
The agency filed the instant request for reconsideration of this decision.
In the agency's request, the agency asserts that the Commission's
prior decision remanding the class claim (1) to the agency for further
processing was improper. Specifically, the agency states that [t]he
complained of action has absolutely no relation to seniority. The change
in policy did not alter any system of allocating benefits based on length
of service. Nor did the change in policy create a system of allocating
benefits based on length of service. Finally, the change in policy does
not alter any system which works in tandem with a system that allocates
benefits based on length of service.
In its request, the agency also states that complainant has never alleged
that his rights or benefits that rest upon seniority were altered by the
policy change. Instead, the agency asserts that complainant claimed that
agency officials were limiting the credit of EEO experience and maximizing
personnel experience through skill coding. The agency contends that the
AJ's decision dismissing claim (1) for untimely EEO counselor contact
should be affirmed.<1>
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.
Upon review of the record, we agree with the agency's assertion that
in the instant matter, complainant is not challenging an alleged
discriminatory seniority system. Rather, a fair reading of the
record reflects that complainant is alleging that the agency has
engaged in a pattern and practice of unlawfully retaliating against
EEO professionals by hampering their advancement within the agency.
In complainant's November 6, 1999 letter to the Secretary of Defense,
in which he requested EEO counseling, he stated, I am contacting you
to address an employment concern that seems to have a covert pattern of
past and present discriminatory animus towards Air Force civilians who
are employed as...EEO Specialists... In his November 6, 1999 letter,
complainant further stated, [i]n the 1970s, affirmative employment was
taken out of the EEO program and moved under the staffing function of
Civilian Personnel. This move allowed Staffing Specialists of Civilian
Personnel to change their titles to Equal Opportunity Staffing Specialists
causing their skills codes to change allowing experience credit for
[EEO] positions. A continual problem where civilian personnelists are
qualified for EEO positions (GS-260) however, EEO personnel are not
qualified or being skill coded for civilian positions.
Complainant asserted that the agency's pattern of retaliating against EEO
professionals continued in the 1980s. Complainant stated that in the
1980s, civilian personnel in Headquarters attempted to gain control'
of field level EEO programs by realigning them from the appointing
authority or the Commander to civilian personnel under the Civilian
Personnel Officer at field level. The rationale behind this attempt
was to assert some control over the program...
In a letter from complainant to the AJ, dated January 25, 2001, entitled
Request to certify...complaint as a class action, complainant
again asserts that the agency has continuously retaliated against
EEO professionals by developing programs and/or policies designed to
hamper their career progression. Specifically, complainant stated that
[t]he policies and practices used by [the agency] in promotion actions
adversely affect career progression of employees in GS-260, Equal
Employment Opportunity Specialist positions. This includes but [is]
not limited to the use of skill coding, promotion evaluation patterns,
Civilian Personnel Career Program, and Personnel Management Assessment
Evaluations. Complainant further asserts that staff assigned to
civilian personnel positions are qualified for GS-260 positions through
skill coding; whereas, employees in the GS-260 series are not able
to qualify for personnel positions, which has adversely affected the
career progression of EEO professionals. Based on these circumstances,
we find that complainant is alleging a pattern or practice claim,
because complainant is asserting that the agency has continuously
retaliated against EEO professionals by thwarting their opportunities
for advancement.
The Commission has stated that [d]iscriminatory acts that are part of a
pattern or practice of discrimination can be challenged as a single claim.
If the discriminatory pattern or practice continues into the filing
period, all of the component acts of the pattern of practice will be
timely... EEOC Compliance Manual, Section 2, Threshold Issues at 2-78
(revised July 21, 2005). In a statement to the Commission in support of
his initial appeal dated October 22, 2002, complainant stated that the
alleged retaliation was ongoing. Specifically, complainant stated that
the ratings associated with the Civilian Personnel Career Program still
occur and that EEO Specialists are being effected by not being allowed
to compete fairly for career growth. Therefore, we find that complainant
timely initiated EEO Counselor contact with respect to claim (1), defined
herein as a pattern or practice class complaint, and we remand this matter
to the agency for further processing in accordance with the Order below.
After reconsidering the previous decision and the entire record, the
Commission, as set forth herein, clarifies the reasoning in EEOC Appeal
No. 01A30538 for remanding claim (1) to the agency for further processing,
and modifies the initial Order as set forth below. There is no further
right of administrative appeal on the decision of the Commission on
this request.
ORDER
The agency is ORDERED to take the following actions:
Within 15 days of the date this decision becomes final, the agency shall
forward the entire record to the appropriate EEOC District Office. In its
letter of transmittal, the agency shall request that an Administrative
Judge be assigned to determine whether the class should be certified
for further processing pursuant to 29 C.F.R. § 1614.204. The agency
shall provide the Compliance Officer referenced herein with a copy of
its transmittal notice.
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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (Q0900)
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 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
__________________
Date
1The Commission notes that since the agency only requests reconsideration
of claim (1), we will not address claims (2)-(4) herein.
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"29 C.F.R. § 1614.503(g)",
"29 C.F.R. § 1614.409",
"42 U.S.C. § 2000e",
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361 | https://www.eeoc.gov/sites/default/files/decisions/2021_11_01/2021003660.pdf | 2021003660.pdf | PDF | application/pdf | 16,471 | Mozelle G .,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. | May 20, 2021 | Appeal Number: 2021003660
Background:
During the period at issue, Complainant worked for the Agency as a Nursing Assistant in
Clarksburg, West Virginia. On January 26, 2021, Complainant contacted an EEO Counselor. Informal efforts to resolve her
concerns were unsuccessful. On April 19, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on sex (female). In its final decision dated May 20, 2021, the Agency
determined that the formal complaint was comprised of the following claims:
Whether Complainant was subjected to a hostile work environment based on sex
(female/sexual harassment) as evidenced by the following events:
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 2021003660
a. From April 2019 to September 2020, [a named physician (P1)]
subjected Complainant to sexual assault.
b. From April 2019 to September 2020, management failed to take remedial act ion against [P1].
c. On September 8, 2020, Complainant was subjected to constructive discharge when she resigned from her position, effective September [17], 2020.
In its final decision, the Agency dismissed the formal complaint for untimely EEO Counselor
contact The Agency reasoned that Complainant initiated EEO Counselor contact on January 26,
2021, more than 45 days from the alleged discriminatory incidents. The Agency further found that Complainant had knowledge of the applicable time limit based on several EEO trainings she had
attended during her employment. The instant appeal followed. On appeal, Complainant, through her attorney, asserts that the Agency’s dismissal of her formal complaint is improper. Complai nant asserts that she was not
aware of the applicable time limits to initiate EEO contact and her facility did not have postings of the applicable time limit. Complainant asserts that she only became aware of the EEO process and the applicable time limit when she contacted an attorney in January 2021. Regarding the Agency’s assertion that Complainant was provided with relevant trainings, Complainant asserts that the Agency failed to provide sufficient evidence that the trainings covered the applicable tim e
limit to initiate the EEO process. Moreover, Complainant asserts that around September 2020, she
informed a supervisor of the alleged assault by P1, but that the supervisor did not provide
information on the EEO process. Complainant notes that P1 subse quently pled guilty to two counts
of assault of Agency employees and that at the plea hearing , P1 admitted to touching
Complainant’s breasts.
In response, the Agency requests we affirm its final decision dismissing Complainant’s complaint
for untimely EEO Counselor contact. In addition, the Agency submits additional information on
the EEO trainings Complainant completed during her employment.
Legal Analysis:
the Commission’s website.
2 2021003660
a. From April 2019 to September 2020, [a named physician (P1)]
subjected Complainant to sexual assault.
b. From April 2019 to September 2020, management failed to take remedial act ion against [P1].
c. On September 8, 2020, Complainant was subjected to constructive discharge when she resigned from her position, effective September [17], 2020.
In its final decision, the Agency dismissed the formal complaint for untimely EEO Counselor
contact The Agency reasoned that Complainant initiated EEO Counselor contact on January 26,
2021, more than 45 days from the alleged discriminatory incidents. The Agency further found that Complainant had knowledge of the applicable time limit based on several EEO trainings she had
attended during her employment. The instant appeal followed. On appeal, Complainant, through her attorney, asserts that the Agency’s dismissal of her formal complaint is improper. Complai nant asserts that she was not
aware of the applicable time limits to initiate EEO contact and her facility did not have postings of the applicable time limit. Complainant asserts that she only became aware of the EEO process and the applicable time limit when she contacted an attorney in January 2021. Regarding the Agency’s assertion that Complainant was provided with relevant trainings, Complainant asserts that the Agency failed to provide sufficient evidence that the trainings covered the applicable tim e
limit to initiate the EEO process. Moreover, Complainant asserts that around September 2020, she
informed a supervisor of the alleged assault by P1, but that the supervisor did not provide
information on the EEO process. Complainant notes that P1 subse quently pled guilty to two counts
of assault of Agency employees and that at the plea hearing , P1 admitted to touching
Complainant’s breasts.
In response, the Agency requests we affirm its final decision dismissing Complainant’s complaint
for untimely EEO Counselor contact. In addition, the Agency submits additional information on
the EEO trainings Complainant completed during her employment.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrim ination 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.
2 While the Agency’s final decision listed the effective date of Complainant’s resignation as
September 22, 2020, the record contains a copy of Complainant’s Notification of Personnel Action Form reflecting that her resignation was effective September 17, 2020.
3 2021003660
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
sufficien t by the agency or the Commission.
In the instant matter, Complainant contacted an EEO Counselor on January 26, 2021,
approximately four months after her resignation on September 2020. However, Complainant, in
her formal complaint and in an affidavit, a sserts that around September 2020, she informed one of
her supervisors of the alleged assault by P1 and that the supervisory official did not take any action
and failed to provide her any information on the EEO process.
3 Complainant further asserts that
even after she informed the supervisor of the alleged assault, P1 continue d to work at the facility.
Here, Complainant asserts she was unaware of the time frame for initiating EEO counseling contact and requests that her delay in doing so be excused. We acknowledge that the record reflects that the Agency provided several EEO trainings during Complainant ’s employment which covered
the applicable time limit. Moreover, the record reflects that one of the trainings Complainant completed during her employment provided that contacting a supervisor (rather than an EEO Counselor) would not constitute initiating the EEO process . However, the Commission has found
that contact with an Agency official who was not an EEO Counselor, but who was “logically connected with the EEO process,” was sufficient to constitute EEO contact notwithstanding the fact that a complain ant apparently was aware of the EEO process. See George v. Dep’t of the
Army , EEOC Request No. 05900435 ( Sept. 7, 1990). Furthermore, the Commission has found
that in the case of sexual harassment, contact with a supervisory official, may be sufficient t o
constitute EEO contact. See Buckli v. Dep’t of the Army, EEOC Request No. 05970223 (Oct. 8,
1998) (citing Landmesser v. Dep’t of Housing and Urban Develop., EEOC Request No. 05920835
(May 6, 1993)). Under the circumstances of this case, w e find that Complainant’s contact with a
supervisory official around September 2020, was sufficient to constitute EEO contact since Complainant put the Agency on notice of her allegations of sexual harassment. Complainant
alleges the harassment was ongoing from April 2019 until her resignation (alleged constructive
discharge) in September 2020. Based on the foregoing and the specific circumstances herein, we find that Complainant timely initiated EEO contact regarding the matters set forth in the formal
complaint.
We REVERSE the Agency’s final decision dismissing Complainant’s complaint and we
REMAND this matter to the Agency for further processing in accordance with the ORDER below.
3 The Agency does not expressly contest or provide documentation clearly contradicting
Complainant’s assertion that she informed a supervisor in September 2020, of the alleged assault
by P1.
4 2021003660
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 t he 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 c omplainant’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.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, complia nce 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 req uired 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 wi th 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 followin g 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 entitle d “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 file s 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.
5 2021003660 | Mozelle G .,1
Complainant,
v.
Denis R. McDonough,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 2021003660
Agency No. 2004-0540-2021101929
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated May 20, 2021, dismissing her complaint
alleging unlawful e mployment 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 for the Agency as a Nursing Assistant in
Clarksburg, West Virginia. On January 26, 2021, Complainant contacted an EEO Counselor. Informal efforts to resolve her
concerns were unsuccessful. On April 19, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on sex (female). In its final decision dated May 20, 2021, the Agency
determined that the formal complaint was comprised of the following claims:
Whether Complainant was subjected to a hostile work environment based on sex
(female/sexual harassment) as evidenced by the following events:
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 2021003660
a. From April 2019 to September 2020, [a named physician (P1)]
subjected Complainant to sexual assault.
b. From April 2019 to September 2020, management failed to take remedial act ion against [P1].
c. On September 8, 2020, Complainant was subjected to constructive discharge when she resigned from her position, effective September [17], 2020.
In its final decision, the Agency dismissed the formal complaint for untimely EEO Counselor
contact The Agency reasoned that Complainant initiated EEO Counselor contact on January 26,
2021, more than 45 days from the alleged discriminatory incidents. The Agency further found that Complainant had knowledge of the applicable time limit based on several EEO trainings she had
attended during her employment. The instant appeal followed. On appeal, Complainant, through her attorney, asserts that the Agency’s dismissal of her formal complaint is improper. Complai nant asserts that she was not
aware of the applicable time limits to initiate EEO contact and her facility did not have postings of the applicable time limit. Complainant asserts that she only became aware of the EEO process and the applicable time limit when she contacted an attorney in January 2021. Regarding the Agency’s assertion that Complainant was provided with relevant trainings, Complainant asserts that the Agency failed to provide sufficient evidence that the trainings covered the applicable tim e
limit to initiate the EEO process. Moreover, Complainant asserts that around September 2020, she
informed a supervisor of the alleged assault by P1, but that the supervisor did not provide
information on the EEO process. Complainant notes that P1 subse quently pled guilty to two counts
of assault of Agency employees and that at the plea hearing , P1 admitted to touching
Complainant’s breasts.
In response, the Agency requests we affirm its final decision dismissing Complainant’s complaint
for untimely EEO Counselor contact. In addition, the Agency submits additional information on
the EEO trainings Complainant completed during her employment.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrim ination 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.
2 While the Agency’s final decision listed the effective date of Complainant’s resignation as
September 22, 2020, the record contains a copy of Complainant’s Notification of Personnel Action Form reflecting that her resignation was effective September 17, 2020.
3 2021003660
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
sufficien t by the agency or the Commission.
In the instant matter, Complainant contacted an EEO Counselor on January 26, 2021,
approximately four months after her resignation on September 2020. However, Complainant, in
her formal complaint and in an affidavit, a sserts that around September 2020, she informed one of
her supervisors of the alleged assault by P1 and that the supervisory official did not take any action
and failed to provide her any information on the EEO process.
3 Complainant further asserts that
even after she informed the supervisor of the alleged assault, P1 continue d to work at the facility.
Here, Complainant asserts she was unaware of the time frame for initiating EEO counseling contact and requests that her delay in doing so be excused. We acknowledge that the record reflects that the Agency provided several EEO trainings during Complainant ’s employment which covered
the applicable time limit. Moreover, the record reflects that one of the trainings Complainant completed during her employment provided that contacting a supervisor (rather than an EEO Counselor) would not constitute initiating the EEO process . However, the Commission has found
that contact with an Agency official who was not an EEO Counselor, but who was “logically connected with the EEO process,” was sufficient to constitute EEO contact notwithstanding the fact that a complain ant apparently was aware of the EEO process. See George v. Dep’t of the
Army , EEOC Request No. 05900435 ( Sept. 7, 1990). Furthermore, the Commission has found
that in the case of sexual harassment, contact with a supervisory official, may be sufficient t o
constitute EEO contact. See Buckli v. Dep’t of the Army, EEOC Request No. 05970223 (Oct. 8,
1998) (citing Landmesser v. Dep’t of Housing and Urban Develop., EEOC Request No. 05920835
(May 6, 1993)). Under the circumstances of this case, w e find that Complainant’s contact with a
supervisory official around September 2020, was sufficient to constitute EEO contact since Complainant put the Agency on notice of her allegations of sexual harassment. Complainant
alleges the harassment was ongoing from April 2019 until her resignation (alleged constructive
discharge) in September 2020. Based on the foregoing and the specific circumstances herein, we find that Complainant timely initiated EEO contact regarding the matters set forth in the formal
complaint.
We REVERSE the Agency’s final decision dismissing Complainant’s complaint and we
REMAND this matter to the Agency for further processing in accordance with the ORDER below.
3 The Agency does not expressly contest or provide documentation clearly contradicting
Complainant’s assertion that she informed a supervisor in September 2020, of the alleged assault
by P1.
4 2021003660
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 t he 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 c omplainant’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.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, complia nce 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 req uired 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 wi th 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 followin g 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 entitle d “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 file s 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.
5 2021003660
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 a ddressed 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 toge ther 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) .
6 2021003660
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a de cision 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 cour t. “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 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 signature
Carlton M. Hadden, Director
Office of Federal Operations
September 13, 2021
Date | [
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362 | https://www.eeoc.gov/sites/default/files/decisions/2024_05_22/2024000794.pdf | 2024000794.pdf | PDF | application/pdf | 25,385 | Mike B.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency. | October 5, 2023 | Appeal Number: 2024000794
Background:
At the time of events giving rise to this complaint, Complainant, a Civil Enginee r, was an
applicant for employment, and a contract employee for the Agency’s Architects and Engineering
Services Unit (“AESU ”) at Redsto ne Arsenal in Huntsville, Alabama.
On May 24, 2023, Complainant filed a f ormal EEO complaint alleging that the Agency subjected
him to discrimination , including a hostile work environment, on the bases of race
(Caucasian/white), sex (male), sexual orientation ( “straight” ), gender identity (cisgender) ,
religion (Roman Catholic) and reprisal for engaging in protected EEO acti vity when :
1. In August 2021, a former Assoc iate Execut ive Assistant Director was overly
demeaning and abused his position.
2. On June 30, 2022, his con tract with the Agency was terminated .
3. On February 18, 2023, he received notification that the Agency discontinued his
employment application.
The A gency dismissed Complainant’ s complaint , pursuant to 29 C.F.R. § 1614.107(a)(2) , for
untimely contact with an EEO Counselor. The instant appe al followed.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that he timely initiated EEO contact after recei ving
documentation from a Freedom of Information Act/Privacy Act (“FOIPA ”) request supporting
his suspicions that the Agency’s action s in Claim 3 w ere motivated by discrimination.
Complainant contends that the Agency caused him to delay his EEO contact by failing to
promptly process his FOIPA request . Complainant also contends Claims 1 and 2 are related to
Claim 3 because the y allege actions that collectively lead to his no nselection in Claim 3.
The Agency contends that Complainant initiated EEO contac t more than 45 days after the
alleged discriminatory events took place , even though he reasonably suspected discrimination
when they occurred. The Agency further contends that Complainant does not affirmatively claim
he was unaware of the 45 -day limitation period , but rather asserts that the delay in contact was
intentional, as he was awaiting the results of a FOI PA request, before proceeding with his EEO
complaint.
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 it s 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 tr ue. See Cobb v. Dep’t of the Treas. , 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 it s 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 tr ue. See Cobb v. Dep’t of the Treas. , 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
Standing EEOC Regulation 29 C.F.R. §1614.107(a)(1) provides for the dismissal of a complaint which
fails to state a claim within the meaning of 29 C.F.R. §1614.103. In order to establish standing
initially under 29 C.F.R. §1614.103, a complainant must be either an employee or an applicant
for employment of the agency against which the allegations of discrimination ar e raised. In
addition, the claims must concern an employment policy or practice which affects the individual in his capacity as an employee or applicant for employment.
For Clai ms 1 and 2, a question of standing e xists because Complainant was a contract or at the
time the alleged discriminatory eve nts. See Serita B. v. Dep’ t of the Army , EEOC Appeal No.
0120150846 (Nov . 10, 2016) . The Agency provided evidence in the record indicating a joint -
employer relationship, and assumed Complainant had standing for purposes of this complaint. As such, the Commission will assume, without deciding, that Complainant has standing to rais e
Claims 1 and 2 for purposes of this complaint as well.
For Claim 3, Complainant has standing to file an EEO complaint as an applican t for federal
employm ent.
Untimely EEO Contact
In relevant part, 29 C.F.R. §1614.107(a)(2), provides that an agency sha ll dismiss a complaint or
a portion of a complaint that fails to comply with the applicable time limits in §1614.105. Under
29 C.F.R. § 1614.105(a)(1), complaints of discrimination should be brought to the attention of
the EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in
the case of a p ersonnel action, within 45 days of the effective date of the action. However, an
agency or the Commission shall extend EEO time limits under certain circumstances, including instance s where a complainant shows that they were not notified of the time limits and were not
otherwise aware of them. 29 C.F.R. §1614.604(c).
The Commission has adopted a "reasonable suspicion" standard (as opposed t o a "supportive
facts" standard) to determine when the 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 dis crimination, but before all the facts that
support a charge of discrimination have become apparent. Complainant v. United States Postal
Serv., EEOC Appeal No. 0120120499 (Apr. 19, 2012).)
Where, as here, there is an issue of timeliness, “[a]n agency always bears the burden of obtaining sufficien t information to support a reasoned determination as to timeliness.” Guy v. Dep’t of
Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep’t of Def. , EEOC
Request No. 05920506 (Aug. 25, 1992)).
Complainant initiated EEO contact on April 23, 2023. The allegation in Claim 1 does not
identify an adverse employment action and it occurred in August 2021. The allegation in Claim
2, a personnel action, occurred on June 30, 2022, both well outside the 45- day time limit.
Complainant has not set f orth adequate justification for the Commission to extend or waive the
time frame for these claims.
Claim 3 alleges discontinuation of Complainant’ s employment application ( nonselection), which
is a personnel action . The refore, the 45-day limita tion period began on the effective date of the
action , or, as in this case, when Complainant became aware of the action , on February 18, 2023.
By his own account, reasonable suspicion existed for Complainant at that time . On appeal,
Complainant describes an array of events that led him to believe the Agency impleme nted
discriminatory h iring practices prior to receiving the F ebruary 18, 2023 notice of the
discontinuation of his application. He asserts that the April 7, 2023 results of the FOIPA was
“the last straw .” (Emphasis original ). Despite his ad mitted suspicion that the February 18, 2023
nonselection was motivated by unlawful discrimination, Com plainant did not initiate EEO
contact until April 23, 2023, which is beyond the 45-day time frame.
In Alonzo L. v. D ep’t of Transportation , EEOC Appeal No. 0120160861 (Mar ch 23, 2016), the
Commission rejected the complainant’s argument that the 45 -day l imitation period should have
been triggered on the date the complainant received documents from a FOIA request because the
request was “intended to obtain f acts to support [the complainant ’s] existing suspicion. ” In
Alonzo L ., the complainant suspected he wa s not selected for promotion based on his
supervisor ’s past practice of what the complainant described as “diversity hires ,” so he submitted
a FOIA reques t for age, race, and gender of the selectee. Although the complainant in Alonzo L.
initiated EEO contact within 45 days of receipt of the FOIA response, it was more than 45 days
after the alleged discriminatory nonselection, and his EEO complaint was prope rly dismissed as
untimely.
Similarly, Complainant argues that for Claim 3, he requir ed “validation ” of his suspicion, that he
“did not feel comfortable to file a report based on mere suspicion ,” that he did not want to risk
being accused of filing a false report, and other vari ations on this theme . As noted above, the
Commission has long held that the 45-day limitation period begins when a complainant has
reasonable suspicion, not when he develops “supportive facts ” for his claim. O’Neill v. Dep’t o f
State, EEOC Appeal No. 01A61546 (Sept. 13, 2006) (affirming dismissal for untimely EEO
contact where the c omplainant did not establish how the information he received through his
FOIA request caused his reasonable suspici on, finding that, “at best ” the results of the FOIA
request constituted “supportive facts ” for suspected discrimination).
Complainant also asserts that had the Agency processed his FOIPA request in a timelier manner,
he would have initiated EEO Contact within the 45- day time frame. Notwithsta nding the 17 -day
period between when Complainant received the FOIPA result s and when he contacted the EEO
Counselor, this argument fails as well.
The Commission has consistently held that the utilization of agency procedures, and other
remedial processes does not toll the time limit for contacting an EEO c ounselor. See Valencia L.
v. R.R. Retireme nt Bd. , EEOC Appeal No. 2019001765 (Sept. 18, 2019) (untimely EEO contact
affirmed where the complainant delayed contacting an EEO counselor about alleged
discrim inatory nonselection until she received the results of her FOIA request related to the
selection process) citing Ellis v. United States Postal Serv. , EEOC Appeal No. 01992093 (Nov.
29, 2000).
Knowledge of Time Limit
The Commission has previously reversed a dismissal for untimely EEO contact where the
complainant explained that they were unaware of the EE O time limits and, there was “no
evidence in the record showing that the complainant either knew or should have been aware of the time limits for contacting the agency's EEO office for the purpose of obtaining EEO
counseling.” Anderson v. Dep’t of the Navy, EEOC Appeal No. 01A50185 (Jan. 26, 2005)
recon. den. EEOC Request No. 05A50569 (Apr. 6, 2005) (agency failed to show that complain ant had actual or cons tructive knowledge of the 45 -day limitation period to contact an
EEO counselor).
Here, Complainant does not claim to be unaware of the 45- day limitation period. However, he
does claim that he “under stood the eFOIPA was a necessary process to complete pri or to filing
an EEOC claim .” He indicates that he relied on the Agency’ s February 18, 2023 email (“I
followed the steps laid out in the Termination Letter as instructed. ”). Although he states that he
“began researching the EEOC process,” he clarifies that i t “led [ him] to believe that the FOIA
response would be the basis for filing the EEO Counseling reque st.” In light of Complainant ’s
non-employee status and the February 18, 2023 email provided by the Agency, we do not find
Complainant’ s | Mike B.,1
Complainant,
v.
Merrick B. Garland,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Appeal No. 2024000794
Agency No. FBI202300167
DECISION
Complainant timely appealed with the Equal Employment Opportunity Commission ( “EEOC ” or
“Commission ”) from the Agency's October 5, 2023 dismissal of 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 Title II of the Genetic I nformation Nondiscrimination
Act of 2008 (“GINA”) , 42 U.S.C. § 2000ff et seq. For the reasons that follow, the Agency’ s
dismissal decision is AFFIRM in part and REVERSED in part.
ISSUE PRESENTED
Whether the Agency’s final decision properly dismissed Complainant’s formal complaint on the grounds of untimely EEO Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2).
BACKGROUND
At the time of events giving rise to this complaint, Complainant, a Civil Enginee r, was an
applicant for employment, and a contract employee for the Agency’s Architects and Engineering
Services Unit (“AESU ”) at Redsto ne Arsenal in Huntsville, Alabama.
On May 24, 2023, Complainant filed a f ormal EEO complaint alleging that the Agency subjected
him to discrimination , including a hostile work environment, on the bases of race
(Caucasian/white), sex (male), sexual orientation ( “straight” ), gender identity (cisgender) ,
religion (Roman Catholic) and reprisal for engaging in protected EEO acti vity when :
1. In August 2021, a former Assoc iate Execut ive Assistant Director was overly
demeaning and abused his position.
2. On June 30, 2022, his con tract with the Agency was terminated .
3. On February 18, 2023, he received notification that the Agency discontinued his
employment application.
The A gency dismissed Complainant’ s complaint , pursuant to 29 C.F.R. § 1614.107(a)(2) , for
untimely contact with an EEO Counselor. The instant appe al followed.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that he timely initiated EEO contact after recei ving
documentation from a Freedom of Information Act/Privacy Act (“FOIPA ”) request supporting
his suspicions that the Agency’s action s in Claim 3 w ere motivated by discrimination.
Complainant contends that the Agency caused him to delay his EEO contact by failing to
promptly process his FOIPA request . Complainant also contends Claims 1 and 2 are related to
Claim 3 because the y allege actions that collectively lead to his no nselection in Claim 3.
The Agency contends that Complainant initiated EEO contac t more than 45 days after the
alleged discriminatory events took place , even though he reasonably suspected discrimination
when they occurred. The Agency further contends that Complainant does not affirmatively claim
he was unaware of the 45 -day limitation period , but rather asserts that the delay in contact was
intentional, as he was awaiting the results of a FOI PA request, before proceeding with his EEO
complaint.
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 it s 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 tr ue. See Cobb v. Dep’t of the Treas. , 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
Standing EEOC Regulation 29 C.F.R. §1614.107(a)(1) provides for the dismissal of a complaint which
fails to state a claim within the meaning of 29 C.F.R. §1614.103. In order to establish standing
initially under 29 C.F.R. §1614.103, a complainant must be either an employee or an applicant
for employment of the agency against which the allegations of discrimination ar e raised. In
addition, the claims must concern an employment policy or practice which affects the individual in his capacity as an employee or applicant for employment.
For Clai ms 1 and 2, a question of standing e xists because Complainant was a contract or at the
time the alleged discriminatory eve nts. See Serita B. v. Dep’ t of the Army , EEOC Appeal No.
0120150846 (Nov . 10, 2016) . The Agency provided evidence in the record indicating a joint -
employer relationship, and assumed Complainant had standing for purposes of this complaint. As such, the Commission will assume, without deciding, that Complainant has standing to rais e
Claims 1 and 2 for purposes of this complaint as well.
For Claim 3, Complainant has standing to file an EEO complaint as an applican t for federal
employm ent.
Untimely EEO Contact
In relevant part, 29 C.F.R. §1614.107(a)(2), provides that an agency sha ll dismiss a complaint or
a portion of a complaint that fails to comply with the applicable time limits in §1614.105. Under
29 C.F.R. § 1614.105(a)(1), complaints of discrimination should be brought to the attention of
the EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in
the case of a p ersonnel action, within 45 days of the effective date of the action. However, an
agency or the Commission shall extend EEO time limits under certain circumstances, including instance s where a complainant shows that they were not notified of the time limits and were not
otherwise aware of them. 29 C.F.R. §1614.604(c).
The Commission has adopted a "reasonable suspicion" standard (as opposed t o a "supportive
facts" standard) to determine when the 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 dis crimination, but before all the facts that
support a charge of discrimination have become apparent. Complainant v. United States Postal
Serv., EEOC Appeal No. 0120120499 (Apr. 19, 2012).)
Where, as here, there is an issue of timeliness, “[a]n agency always bears the burden of obtaining sufficien t information to support a reasoned determination as to timeliness.” Guy v. Dep’t of
Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep’t of Def. , EEOC
Request No. 05920506 (Aug. 25, 1992)).
Complainant initiated EEO contact on April 23, 2023. The allegation in Claim 1 does not
identify an adverse employment action and it occurred in August 2021. The allegation in Claim
2, a personnel action, occurred on June 30, 2022, both well outside the 45- day time limit.
Complainant has not set f orth adequate justification for the Commission to extend or waive the
time frame for these claims.
Claim 3 alleges discontinuation of Complainant’ s employment application ( nonselection), which
is a personnel action . The refore, the 45-day limita tion period began on the effective date of the
action , or, as in this case, when Complainant became aware of the action , on February 18, 2023.
By his own account, reasonable suspicion existed for Complainant at that time . On appeal,
Complainant describes an array of events that led him to believe the Agency impleme nted
discriminatory h iring practices prior to receiving the F ebruary 18, 2023 notice of the
discontinuation of his application. He asserts that the April 7, 2023 results of the FOIPA was
“the last straw .” (Emphasis original ). Despite his ad mitted suspicion that the February 18, 2023
nonselection was motivated by unlawful discrimination, Com plainant did not initiate EEO
contact until April 23, 2023, which is beyond the 45-day time frame.
In Alonzo L. v. D ep’t of Transportation , EEOC Appeal No. 0120160861 (Mar ch 23, 2016), the
Commission rejected the complainant’s argument that the 45 -day l imitation period should have
been triggered on the date the complainant received documents from a FOIA request because the
request was “intended to obtain f acts to support [the complainant ’s] existing suspicion. ” In
Alonzo L ., the complainant suspected he wa s not selected for promotion based on his
supervisor ’s past practice of what the complainant described as “diversity hires ,” so he submitted
a FOIA reques t for age, race, and gender of the selectee. Although the complainant in Alonzo L.
initiated EEO contact within 45 days of receipt of the FOIA response, it was more than 45 days
after the alleged discriminatory nonselection, and his EEO complaint was prope rly dismissed as
untimely.
Similarly, Complainant argues that for Claim 3, he requir ed “validation ” of his suspicion, that he
“did not feel comfortable to file a report based on mere suspicion ,” that he did not want to risk
being accused of filing a false report, and other vari ations on this theme . As noted above, the
Commission has long held that the 45-day limitation period begins when a complainant has
reasonable suspicion, not when he develops “supportive facts ” for his claim. O’Neill v. Dep’t o f
State, EEOC Appeal No. 01A61546 (Sept. 13, 2006) (affirming dismissal for untimely EEO
contact where the c omplainant did not establish how the information he received through his
FOIA request caused his reasonable suspici on, finding that, “at best ” the results of the FOIA
request constituted “supportive facts ” for suspected discrimination).
Complainant also asserts that had the Agency processed his FOIPA request in a timelier manner,
he would have initiated EEO Contact within the 45- day time frame. Notwithsta nding the 17 -day
period between when Complainant received the FOIPA result s and when he contacted the EEO
Counselor, this argument fails as well.
The Commission has consistently held that the utilization of agency procedures, and other
remedial processes does not toll the time limit for contacting an EEO c ounselor. See Valencia L.
v. R.R. Retireme nt Bd. , EEOC Appeal No. 2019001765 (Sept. 18, 2019) (untimely EEO contact
affirmed where the complainant delayed contacting an EEO counselor about alleged
discrim inatory nonselection until she received the results of her FOIA request related to the
selection process) citing Ellis v. United States Postal Serv. , EEOC Appeal No. 01992093 (Nov.
29, 2000).
Knowledge of Time Limit
The Commission has previously reversed a dismissal for untimely EEO contact where the
complainant explained that they were unaware of the EE O time limits and, there was “no
evidence in the record showing that the complainant either knew or should have been aware of the time limits for contacting the agency's EEO office for the purpose of obtaining EEO
counseling.” Anderson v. Dep’t of the Navy, EEOC Appeal No. 01A50185 (Jan. 26, 2005)
recon. den. EEOC Request No. 05A50569 (Apr. 6, 2005) (agency failed to show that complain ant had actual or cons tructive knowledge of the 45 -day limitation period to contact an
EEO counselor).
Here, Complainant does not claim to be unaware of the 45- day limitation period. However, he
does claim that he “under stood the eFOIPA was a necessary process to complete pri or to filing
an EEOC claim .” He indicates that he relied on the Agency’ s February 18, 2023 email (“I
followed the steps laid out in the Termination Letter as instructed. ”). Although he states that he
“began researching the EEOC process,” he clarifies that i t “led [ him] to believe that the FOIA
response would be the basis for filing the EEO Counseling reque st.” In light of Complainant ’s
non-employee status and the February 18, 2023 email provided by the Agency, we do not find
Complainant’ s conclusion to be unreasonable.
Complainant provide d the Commission with a copy of the February 18, 2023 from the Agency
notifying him that the Agency discontinued his employment application. The body of the email
includes two paragraphs about Complainant’ s right to request information about his application
file under the Freedom of Information/Privacy Acts. The Agency inc ludes instructions for how to
upload a FOIPA request via the Agency’ s eFOIPA Portal. In addition, the Agency provides an
email address for inquiries and a link to a page with frequently asked questions about using t he
Agency’ s eFOIPA system, as w ell as another link for “ additional guidance ” on FOI PA. Nearly
half of the email concerns information about FOIPA. There is no information in the February 18, 2023 email about Complainant ’s rights under Title
VII, GINA or any of the other equal e mployment statutes enforced by the C ommission , as is
often provided with Agency notices of personnel actions. The re is no evidence in the record
showing that Complainant e ither knew or should have been aware of the ti me limits for
contacting the agency's EEO office for the purpose of obtaining EEO counseling. Unlike the
above referenced cases regarding FOIA requests and reasonable suspicion, Complainant was not
an Agency employee.
There is no presumption of imputed knowledge of EEO processes and procedures for federal
employees and applicants . Moreover, Complainant ’s pro mpt submission to the Agency’ s
eFOIPA portal and subsequent EEO contact within 45 days supports that he a cted with due
diligence in pursuing his complaint.
Based on the facts and circumstances specific to t his complaint, the Commission finds it
appropriate to waive the 45- day limitation period for EEO c ontact with resp ect to Claim 3
pursuant to our authority under29 C.F.R. § 1614.604(c) .
Host ile Work Environment
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of the Equal Employment Opportunity Counselor within 45 days of the
date of the matter alleged to be discriminatory or, in the case of a pe rsonnel action, within 45
days of the effective date of the action.
A hostile work environment claim, however, is comprised of a series of separate acts that collectively constitute one unlawful employment practice. Nat ’l R.R. Passenger Corp . v.
Morgan, 536 U.S. 101, 117 (2002). Unlike a claim which is based on discrete acts of
discrimination, a hostile work environment claim is based upon the cumulative effect of individual acts that may not themselves be actionable. Id. at 115. Furthermore, a hostile wor k
environment claim will not be time barred if all acts constituting the claim are part of the same unlawful practice even if some component acts of hostile work environment fall outside the
statutory time period so long as an act contributing to the clai m falls within the filing period. Id.
at 117. The Commission has stated 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 leas t one incident that is part of the claim occurred within the filing
period. This includes incidents that occurred outside the filing period that the [Complainant] knew or should have known were actionable at the time of their occurrence.” EEOC Compliance
Manual, Sec . 2, Threshold Issues at 2-75 (revised July 21, 2005) (citing Morgan).
Assuming Complainant has standing to raise the allegations in Claims 1 and 2 in an EEO
complaint, they are not “part of the same unlawful practice” as Claim 3, the only time ly raised
allegation in this complaint. Claims 1 and 2 occurred long before the incident in Claim 3, and
concerned different Agency officials , offices and events . Moreover, Complainant raised Claim 3
as an app licant for federal employment, whereas Claims 1 and 2 allege events that occurred in
Complainant ’s capacity as a contractor . Claim 3, as a discrete action, does not state a claim of a
hostile work environment.
CONCL USION
Accordingly, w e AFFIRM the Agency ’s dismissal of Claims 1 and 2 and REVERSE the
Agency’ s dismissal of Claim 3.
We hereby REM AND Claim 3 to the Agency for processing in a ccordance with this decision an d
the following Order.
ORDER (E0 224)
The Agency is ordered to process the remanded claim (Claim 3) 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 wit hin thirty (30) c alendar 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 wa s 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 p rovided in the st atement 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
investigat ive 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.
STATEM ENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0124.1)
The Commi ssion may, in its discretion, reconsider this appellate decision if Complainant or the
Agency submits a written request that contains arguments or evidence that tend t o establish that:
1. The a ppellate 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 reconsid eration must be filed with E EOC’s Office of Federal Operations (OFO)
within thirty (30) c alendar 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 twent y
(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
Oppor tunity Management Directive for 29 C.F.R. Part 1614 (EEO MD -110), a t 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 Oper ations, 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 t imely 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 (Fe dSEP). 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 w hich case no proof of
service is required.
Failure to file within the 30 -da y time period w ill result in dismissal of the party’s request for
reconsider ation as untimely, unless extenuating circumstances prevented the timely filing of the
request. Any supporting documentation must be submitted together with the request for
reconsideration. T he Commission will consider requests for reconsideration filed after the
deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(f).
IMPLEMENTATION OF THE COMMISSI ON’S DECISION (K07 19)
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 Porta l (FedSEP)
supporting documents in the d igital 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 r eport 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 h is/her representative.
If the Agency does not comply with th e
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 a n 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 paragr aph 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 complian ce report or implement any of the orders set forth in
this d ecision, 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 (T0124)
This decision affirms the A gency’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) ca lendar
days from the date that you receive this decision on both that portion of your complaint which
the Commission has affirmed and tha t portion of the complaint which has been remanded for
continued administrative processing. In the alternative, you ma y 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 issue s 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 d o 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 te rminate 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 a ppointment of an attorney directly to the court, not the Co mmission. 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 A ction for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director Office of Federal Operations
April 9, 2024
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363 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120172231.txt | 0120172231.txt | TXT | text/plain | 10,264 | Sueann C,1 Complainant, v. Ryan K. Zinke, Secretary, Department of the Interior (Bureau of Reclamation), Agency. | May 11, 2017 | Appeal Number: 0120172231
Background:
At the time of events giving rise to this complaint, Complainant worked as a Grants Management Specialist at the Agency's Bureau of Reclamation's Acquisition Department, in Sacramento, California.
In June 2016, Complainant was interviewed for a position within the Agency. On June 29, 2016, she was informed by her supervisor (Supervisor) that she was not selected for the position in question. Complainant indicated that she contacted Human Resources to discuss the situation with the Supervisor. She also realized comments the Supervisor was making to other Caucasian employees but not to her. On November 16, 2016, Complainant contacted the EEO Counselor alleging discrimination.
When the matter could not be resolved informally, on January 3, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), color (Not Specified), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. Complainant was not selected for the Grants Management Specialist position GS-1109-09/11, advertised under vacancy announcement BR-MP-2016-112 in June/July 2016; and
2. Complainant did not receive a GO certification and a delegation warrant as discussed on November 21, 2016.
The Agency dismissed claim (1) pursuant to 29 C.F.R. §1614.107(a)(2) for failure to raise the matter in a timely manner with the EEO Counselor. The Agency noted that Complainant had filed a prior EEO complaint and was aware of the 45 day time limit. The Agency indicated that Complainant was made aware that she was not selected for the position in question on June 29, 2016. Complainant informed the EEO Counselor that she did not contact the EEO Office because the EEO Manager position was vacant and she believed that the EEO Specialist was the secretary. Therefore, the Agency found that Complainant failed to provide any reason to toll the time period. As such, the Agency dismissed claim (1) pursuant to 29 C.F.R. §1614.107(a)(2). The Agency then dismissed claim (2) for failure to raise this matter with the EEO Counselor pursuant to 29 C.F.R. §1614.107(a)(2).
Complainant appealed asserting that she was not aware of the discrimination until she gathered more information. As such, she did not suspect discrimination until a later date. Further, Complainant raised a serious of new claims of discrimination that were not raised in the EEO complaint at hand.
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 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.
Complainant has filed previous complaints so is presumed to be aware of the time limits for contacting an EEO counselor. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. She argues that the delay in contacting a counselor resulted from her attempts to get more information and subsequent events she experienced at the hands of the Supervisor. However, with regard to the timeliness of EEO counseling, 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. Based on the facts as presented in this case, we agree with the Agency that Complainant reasonably suspected discrimination by June 29, 2016, when the Supervisor informed her of the decision not to select her for the position in question. As such, we find that the dismissal of claim (1) was appropriate.
As for claim (2), a review of the record shows that Complainant failed to raise the issue of the GO certification to the EEO Counselor. As such, we find that claim (2) was properly dismissed for raising a matter that has not been brought to the attention of a EEO Counselor pursuant to 29 C.F.R. § 1614.107(a)(2). | Sueann C,1
Complainant,
v.
Ryan K. Zinke,
Secretary,
Department of the Interior
(Bureau of Reclamation),
Agency.
Appeal No. 0120172231
Agency No. DOI-BOR-17-0201
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated May 11, 2017, 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
At the time of events giving rise to this complaint, Complainant worked as a Grants Management Specialist at the Agency's Bureau of Reclamation's Acquisition Department, in Sacramento, California.
In June 2016, Complainant was interviewed for a position within the Agency. On June 29, 2016, she was informed by her supervisor (Supervisor) that she was not selected for the position in question. Complainant indicated that she contacted Human Resources to discuss the situation with the Supervisor. She also realized comments the Supervisor was making to other Caucasian employees but not to her. On November 16, 2016, Complainant contacted the EEO Counselor alleging discrimination.
When the matter could not be resolved informally, on January 3, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), color (Not Specified), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. Complainant was not selected for the Grants Management Specialist position GS-1109-09/11, advertised under vacancy announcement BR-MP-2016-112 in June/July 2016; and
2. Complainant did not receive a GO certification and a delegation warrant as discussed on November 21, 2016.
The Agency dismissed claim (1) pursuant to 29 C.F.R. §1614.107(a)(2) for failure to raise the matter in a timely manner with the EEO Counselor. The Agency noted that Complainant had filed a prior EEO complaint and was aware of the 45 day time limit. The Agency indicated that Complainant was made aware that she was not selected for the position in question on June 29, 2016. Complainant informed the EEO Counselor that she did not contact the EEO Office because the EEO Manager position was vacant and she believed that the EEO Specialist was the secretary. Therefore, the Agency found that Complainant failed to provide any reason to toll the time period. As such, the Agency dismissed claim (1) pursuant to 29 C.F.R. §1614.107(a)(2). The Agency then dismissed claim (2) for failure to raise this matter with the EEO Counselor pursuant to 29 C.F.R. §1614.107(a)(2).
Complainant appealed asserting that she was not aware of the discrimination until she gathered more information. As such, she did not suspect discrimination until a later date. Further, Complainant raised a serious of new claims of discrimination that were not raised in the EEO complaint at hand.
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.
Complainant has filed previous complaints so is presumed to be aware of the time limits for contacting an EEO counselor. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. She argues that the delay in contacting a counselor resulted from her attempts to get more information and subsequent events she experienced at the hands of the Supervisor. However, with regard to the timeliness of EEO counseling, 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. Based on the facts as presented in this case, we agree with the Agency that Complainant reasonably suspected discrimination by June 29, 2016, when the Supervisor informed her of the decision not to select her for the position in question. As such, we find that the dismissal of claim (1) was appropriate.
As for claim (2), a review of the record shows that Complainant failed to raise the issue of the GO certification to the EEO Counselor. As such, we find that claim (2) was properly dismissed for raising a matter that has not been brought to the attention of a EEO Counselor pursuant to 29 C.F.R. § 1614.107(a)(2).
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 (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 (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 19, 2017
__________________
Date
------------------------------------------------------------
------------------------------------------------------------
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364 | https://www.eeoc.gov/sites/default/files/decisions/2021_08_16/2021000559.pdf | 2021000559.pdf | PDF | application/pdf | 9,851 | Ardelia I .,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency. | September 2, 2020 | Appeal Number: 2021000559
Background:
During the period at issue , Complainant worked as a Distribution Clerk, Level 6, at the Agency’s
Seattle South DDC facility in Kent, Washington. On August 18, 2020, Complainant filed a formal EEO complaint alleging that the Agency
discriminated against her based on race (Asian) when , on February 20, 2020, the Lead Clerk
approached Complainant with an aggressive tone and stated he was no longer giving Complainant a break/relief during her shift. On September 2, 2020, the Agency issued a final decision. Therein, the Agenc y dismissed the
formal complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency determined that Complainant’s claim arose out of an incident that occurred on February 20, 2020, but that Complainant ’s initial EEO coun selor contact was not until April 29,
2020. The Agency found Complainant’s EEO C ounselor contact to be beyond the 45 -day
limitation period.
Additionally, the Agency dismissed the formal complaint on the alternative grounds of failure to
state a claim.
The instant appeal followed. On appeal, Complainant, through counsel, argues that she contacted someone logically connected to the EEO office by contacting the Commission on April 2, 2020,
which makes her contact timely. She states that when she found out that the Commission was not
the proper office to contact, she realized she needed legal counsel . Complainant avers that, once
she had legal counsel, she made contact with the Agency’s EEO Counselor on April 29, 2020.
Complainant also argues that the Agency inappropriately analyzed the claim on its merits when
dismissing the formal complaint on the alternative grounds of failure to state a claim.
Legal Analysis:
the Commission on April 2, 2020,
which makes her contact timely. She states that when she found out that the Commission was not
the proper office to contact, she realized she needed legal counsel . Complainant avers that, once
she had legal counsel, she made contact with the Agency’s EEO Counselor on April 29, 2020.
Complainant also argues that the Agency inappropriately analyzed the claim on its merits when
dismissing the formal complaint on the alternative grounds of failure to state a claim.
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.
Complainant does not dispute that she did not make contact with the Agency to seek EEO
counseling until April 2 9, 2020, more than 45 days after the event at issue. However, she argues
that the prior to that date, on April 2, 2020, she sent an email about her claim to the Commission, which she argues was an office logically connected to the EEO complaint process and was,
therefore, timely . Complainant provides a copy of the email response from the Commission to her
inquiry, dated April 2, 2020.
We note, however, that the Commission’s April 2, 2020 response explicitly stated that
Complainant needed to contact her Agency’s EEO Counselor, followed by the Agency’s EEO
telephone number. That telephone number directs callers to an e-file page to begin the process ,
and provides a reminder of the 45- day deadline. 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 p rocess, even if that official is not an EEO Counselor.” Floyd
v. National Guard Bureau, EEOC request No. 05890086 (June 22, 1989). Complainant’s 45 days
tolled on April 5, 2020, and she was advised prior to that time, on April 2, 2020, of precisely how to contact her Agency’s EEO office. While Complainant states that she then realized she needed
legal counsel , she was advised of the precise number to call that would guide her on how to e- file
her complaint , and the amount of time she had. Complainant does not provide any reason as to
why she did not us e the direct contact information provided to her so that she could timely contact
the Agency’s EEO counselor. Instead, Complainant allowed the 45 days to toll without making EEO Counselor contact.
We therefore f ind no justification has been provided for extending the 45 -day limitation period
and affirm the Agency’s dismissal of the complaint because Complainant’s EEO Counselor
contact was untimely made.
Because we affirm the Agency ’s dismissal for the reason discussed above, we will not address
alternative dismissal grounds. | Ardelia I .,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 2021000559
Agency No. 1E-981-0019-20
DECISION
The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant’s
appeal, pursuant to 29 C.F.R. § 1614.403(a), from the A gency ’s decision dated September 2, 2020,
dismissing her complaint of unlawful employment discrimination alleging a 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 Distribution Clerk, Level 6, at the Agency’s
Seattle South DDC facility in Kent, Washington. On August 18, 2020, Complainant filed a formal EEO complaint alleging that the Agency
discriminated against her based on race (Asian) when , on February 20, 2020, the Lead Clerk
approached Complainant with an aggressive tone and stated he was no longer giving Complainant a break/relief during her shift. On September 2, 2020, the Agency issued a final decision. Therein, the Agenc y dismissed the
formal complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency determined that Complainant’s claim arose out of an incident that occurred on February 20, 2020, but that Complainant ’s initial EEO coun selor contact was not until April 29,
2020. The Agency found Complainant’s EEO C ounselor contact to be beyond the 45 -day
limitation period.
Additionally, the Agency dismissed the formal complaint on the alternative grounds of failure to
state a claim.
The instant appeal followed. On appeal, Complainant, through counsel, argues that she contacted someone logically connected to the EEO office by contacting the Commission on April 2, 2020,
which makes her contact timely. She states that when she found out that the Commission was not
the proper office to contact, she realized she needed legal counsel . Complainant avers that, once
she had legal counsel, she made contact with the Agency’s EEO Counselor on April 29, 2020.
Complainant also argues that the Agency inappropriately analyzed the claim on its merits when
dismissing the formal complaint on the alternative grounds of failure to state a claim.
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.
Complainant does not dispute that she did not make contact with the Agency to seek EEO
counseling until April 2 9, 2020, more than 45 days after the event at issue. However, she argues
that the prior to that date, on April 2, 2020, she sent an email about her claim to the Commission, which she argues was an office logically connected to the EEO complaint process and was,
therefore, timely . Complainant provides a copy of the email response from the Commission to her
inquiry, dated April 2, 2020.
We note, however, that the Commission’s April 2, 2020 response explicitly stated that
Complainant needed to contact her Agency’s EEO Counselor, followed by the Agency’s EEO
telephone number. That telephone number directs callers to an e-file page to begin the process ,
and provides a reminder of the 45- day deadline. 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 p rocess, even if that official is not an EEO Counselor.” Floyd
v. National Guard Bureau, EEOC request No. 05890086 (June 22, 1989). Complainant’s 45 days
tolled on April 5, 2020, and she was advised prior to that time, on April 2, 2020, of precisely how to contact her Agency’s EEO office. While Complainant states that she then realized she needed
legal counsel , she was advised of the precise number to call that would guide her on how to e- file
her complaint , and the amount of time she had. Complainant does not provide any reason as to
why she did not us e the direct contact information provided to her so that she could timely contact
the Agency’s EEO counselor. Instead, Complainant allowed the 45 days to toll without making EEO Counselor contact.
We therefore f ind no justification has been provided for extending the 45 -day limitation period
and affirm the Agency’s dismissal of the complaint because Complainant’s EEO Counselor
contact was untimely made.
Because we affirm the Agency ’s dismissal for the reason discussed above, we will not address
alternative dismissal grounds.
CONCLUSION
The Agency’s final decision, dismissing the instant formal complaint for untimely EEO Counselor contact is AFFIRMED.
STATEMENT OF RIGHTS - ON APPE AL
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
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 recon sider 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
Federa l 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 (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 t he 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
February 2, 2021
Date | [
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365 | https://www.eeoc.gov/sites/default/files/decisions/2023_02_03/2022004669.pdf | 2022004669.pdf | PDF | application/pdf | 10,236 | Samu el C.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency. | August 25, 2022 | Appeal Number: 2022004669
Background:
During the relevant time , Complainant worked for the Agency as an Accountant, GS -13, in Fort
Belvoir, Virginia. On June 24, 2022, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were not successful. On July 25, 2022, Complainant filed a formal complaint alleging
that the Agency subjected him to discrimination based on race, sex, color, and age when , on
April 21, 2022, he learned that he was not selected for the position of Staff Accountant, DLAFJ8 -22-11415059-MP.
In its August 25, 2022 final decision, the Agency dismissed the formal complaint pursuant to 29
C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact.
This appeal followed.
Legal Analysis:
EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate
contact with an EEO C ounselor within forty- five (45) days of the date of the matter alleged to be
discriminatory or, in the case of a personnel ac tion, within forty- five (45) days of the effective
date of the action.
The record discloses that the alleged discriminatory event occurred on April 21, 2022, but the
Agency asserts Complainant did not initiate contact with an EEO Counselor with an intent to
pursue the EEO process until Ju ne 24, 2022, which is beyond the forty- five (45) day limitation
period.
A complainant satisfies the requirement of EEO counselor contact by contacting an agency
official “logical ly connected” with the EEO process 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 No. 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, Complainant learned on April 21, 2022, that he was not selected for the staff accountant
position. Subsequently, on May 10, 2022, Complainant contacted both the Union and the Agency’s EEO Office to discuss “possible solutions and assistance.” On May 18, 2022, a representative from the Agen cy’s EEO Office provided Complaina nt with relevant intake forms
and offered to meet Complainant that same day to discuss his concerns. In an email from Complainant to the EEO Office r epresentative, Complainant indicated that he had elected not to
file an EEO com plaint and, instead, chose to pursue the matter through the Agency’s negotiated
grievance process.
Thereafter , on June 24, 2022, Complainant again contacted the EEO office via email advising
that he was no longer challenging his non- selection through the grievance process. Compl ainant
inquired about next steps to “initiate and complete” the EEO process. In addition, the record
indicates that Complainant attached a pre -complaint form to his email identifying April 21, 2022,
as the date of his non -selection. Here, we conclude that the recor d supports the A gency ’s | Samu el C.,1
Complainant,
v.
Lloyd J. Austin III,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.
Appeal No. 2022004669
Agency No. DLAF-22-0173
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated August 25, 2022, 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 the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
During the relevant time , Complainant worked for the Agency as an Accountant, GS -13, in Fort
Belvoir, Virginia. On June 24, 2022, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were not successful. On July 25, 2022, Complainant filed a formal complaint alleging
that the Agency subjected him to discrimination based on race, sex, color, and age when , on
April 21, 2022, he learned that he was not selected for the position of Staff Accountant, DLAFJ8 -22-11415059-MP.
In its August 25, 2022 final decision, the Agency dismissed the formal complaint pursuant to 29
C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact.
This appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate
contact with an EEO C ounselor within forty- five (45) days of the date of the matter alleged to be
discriminatory or, in the case of a personnel ac tion, within forty- five (45) days of the effective
date of the action.
The record discloses that the alleged discriminatory event occurred on April 21, 2022, but the
Agency asserts Complainant did not initiate contact with an EEO Counselor with an intent to
pursue the EEO process until Ju ne 24, 2022, which is beyond the forty- five (45) day limitation
period.
A complainant satisfies the requirement of EEO counselor contact by contacting an agency
official “logical ly connected” with the EEO process 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 No. 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, Complainant learned on April 21, 2022, that he was not selected for the staff accountant
position. Subsequently, on May 10, 2022, Complainant contacted both the Union and the Agency’s EEO Office to discuss “possible solutions and assistance.” On May 18, 2022, a representative from the Agen cy’s EEO Office provided Complaina nt with relevant intake forms
and offered to meet Complainant that same day to discuss his concerns. In an email from Complainant to the EEO Office r epresentative, Complainant indicated that he had elected not to
file an EEO com plaint and, instead, chose to pursue the matter through the Agency’s negotiated
grievance process.
Thereafter , on June 24, 2022, Complainant again contacted the EEO office via email advising
that he was no longer challenging his non- selection through the grievance process. Compl ainant
inquired about next steps to “initiate and complete” the EEO process. In addition, the record
indicates that Complainant attached a pre -complaint form to his email identifying April 21, 2022,
as the date of his non -selection. Here, we conclude that the recor d supports the A gency ’s
conclusion that Complainant did not exhibit the requisite intent to begin the EEO complaint process until his June 24, 2022 second contact with the EEO office, which was beyond the required 45 -day limitation period. More over, the Commission has consistently held that the
utilization of agency procedures, union grievances, and other remedial processes doe s not toll the
time limit for contacting an EEO Counselor. See Ellis v. United States Postal Service , EEOC
Appeal No. 01992093 (November 29, 2000).
Finally, on appeal, Complainant now contends that although he learned of his non- selection on
April 21, 2022, he did not reasonably suspect unlawful employment discrimination until May 10,
2022, when he realized that t he sel ecting official for the accounting position was purportedly
refusing to meet with him. The Commission has long adopted a "reasona ble 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 sus pects
discrimination, but before all the facts that support a charge of discriminati on have become
apparent. Here, we are not persuaded that Complainant did not reasonably suspect discrimination
when he first learned of his non- selection on April 21, 2022.
CONCLUSION
The Agency's final decision dismissing the formal complaint for the reason s discussed above 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 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, t hat 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 t he 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 p ostmark, 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 re quest 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 th e
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 t he date that you receive this decision. If you file a civ il 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 cour t. “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, fi ling a civil action will terminate the
administrative proc essing 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 proc eed 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
Com plainant’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 19, 2022
Date | [
"Jayna A. v. U.S. Postal Serv., EEOC Appeal No. 2019000179 (Nov. 29, 2018)",
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366 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a61240.txt | 01a61240.txt | TXT | text/plain | 11,581 | David Rodriguez v. United States Postal Service 01A61240 May 17, 2006 . David Rodriguez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. | May 17, 2006 | Appeal Number: 01A61240
Case Facts:
Complainant initiated contact with an EEO Counselor on February 19,
2004. Complainant filed a formal EEO complaint in which he claimed
that the agency discriminated against him on the bases of his race
(Mexican-American), color (brown), sex (male), national origin (Mexican)
and in reprisal for her previous EEO activity under Title VII when:
1. On February 7, 2004, complainant was denied an opportunity to become
a full-time regular Distribution Clerk.
2. On March 18, 2004, complainant was sent home early.
3. On April 2 and May 3, 2004, complainant was denied leave pursuant
to the Family Medical Leave Act (FMLA).
4. On April 2, 2004, complainant was denied administrative leave.
5. On June 4, 2004 and July 1, 2004, complainant was denied time to meet
with his EEO representative.
By partial dismissal dated July 21, 2004, the agency dismissed claim
(1) pursuant to 29 C.F.R. §1614.107(a)(1) on the grounds of failure to
state a claim and 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
determined that the issue of converting part-time clerks to regular
clerks is covered by the National Agreement and that therefore the
proper forum for the complaint is the negotiated grievance process and
not the EEO complaint process. The agency further determined that the
last conversion to a regular clerk position occurred and was posted
on December 13, 2003, and therefore complainant's contact of an EEO
Counselor on February 19, 2004, was after the expiration of the 45-day
limitation period for contacting an EEO Counselor.
The agency investigated the remaining claims of the complaint and
thereafter referred the matter to an Administrative Judge (AJ) pursuant
to complainant's request for a hearing. Without holding a hearing, the
AJ issued a decision finding no discrimination on the alleged bases.
The AJ found that complainant failed to establish a prima facie case
of discrimination on the bases of race, color, sex and national origin.
The AJ stated that complainant failed to identify any similarly situated
employees who under similar circumstances were treated more favorably
than complainant. According to the AJ, the agency set forth legitimate,
nondiscriminatory reasons for its actions which complainant did not
show were pretextual. The AJ noted that the agency granted complainant
FMLA leave and administrative leave on various occasions prior to and
subsequent to the identified incidents. The AJ further noted that
complainant was granted time to meet with his EEO Representative
subsequent to the time that he identified. By final action dated
November 3, 2005, the agency adopted the AJ's decision and determined
that no discrimination occurred.
On appeal, complainant disputes the agency's explanation for denying
him leave for eight hours. Complainant contends that he was working more
than an average of eight hours per day. Complainant argues that agency
officials knew that he had engaged in EEO activity and were purposely
denying him time to meet with his EEO representative as a means of
frustrating the EEO process and causing him further harm.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she 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, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Initially, we observe that complainant did not raise the dismissal of
claim (1) with the AJ and therefore we will not address the propriety
of the dismissal of claim (1) in this decision.
With regard to each claim, we shall assume arguendo that complainant
established a prima facie case on each of the alleged bases. The agency
stated with regard to claim (2) that complainant was sent home so that
budgeted hours could be acquired. According to the agency, complainant
was scheduled to begin his tour at 4:00 am, but his end tour depends on
the workload, and on March 18, 2004, complainant was sent home at 9:30.
As for claim (3), the agency stated that complainant was granted family
medical leave on the relevant dates. According to the agency, part-time
flexible employees are charged with six hours of leave for sick leave
or family medical leave absences since they are not full-time employees
and because their hours can change from day to day and week to week.
With respect to claim (4), the agency stated that complainant was late
for work due to a traffic problem. The agency asserted that tardiness
due to traffic congestion is not an acceptable reason for the granting of
administrative leave. With regard to claim (5), the agency stated that
complainant's requests to meet with an EEO representative were denied
because the EEO representative left work due to an emergency on June 4,
2004, and because the EEO representative was on annual leave on July 1,
2004. The agency noted that complainant's request to meet with another
EEO representative was not granted because complainant wanted to meet the
EEO representative outside the work location. We find that the agency
articulated legitimate, nondiscriminatory reasons for its alleged actions.
Legal Analysis:
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she 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, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Initially, we observe that complainant did not raise the dismissal of
claim (1) with the AJ and therefore we will not address the propriety
of the dismissal of claim (1) in this decision.
With regard to each claim, we shall assume arguendo that complainant
established a prima facie case on each of the alleged bases. The agency
stated with regard to claim (2) that complainant was sent home so that
budgeted hours could be acquired. According to the agency, complainant
was scheduled to begin his tour at 4:00 am, but his end tour depends on
the workload, and on March 18, 2004, complainant was sent home at 9:30.
As for claim (3), the agency stated that complainant was granted family
medical leave on the relevant dates. According to the agency, part-time
flexible employees are charged with six hours of leave for sick leave
or family medical leave absences since they are not full-time employees
and because their hours can change from day to day and week to week.
With respect to claim (4), the agency stated that complainant was late
for work due to a traffic problem. The agency asserted that tardiness
due to traffic congestion is not an acceptable reason for the granting of
administrative leave. With regard to claim (5), the agency stated that
complainant's requests to meet with an EEO representative were denied
because the EEO representative left work due to an emergency on June 4,
2004, and because the EEO representative was on annual leave on July 1,
2004. The agency noted that complainant's request to meet with another
EEO representative was not granted because complainant wanted to meet the
EEO representative outside the work location. We find that the agency
articulated legitimate, nondiscriminatory reasons for its alleged actions.
Upon review of the record, including complainant's statement on appeal,
we find that complainant has not established that the agency's stated
reasons were pretext intended to mask discriminatory motivation.
Complainant submits arguments that challenge the agency's positions, but
the arguments do not establish that he suffered disparate treatment as a
result of the alleged bases. Complainant has not shown that similarly
situated individuals outside his protected classes were treated more
favorably than complainant was treated. Complainant has also not shown
that his prior EEO activity was a reason for the alleged actions rather
than the legitimate, nondiscriminatory reasons set forth by the agency.
Regarding claim 5, we find that this issue should not be analyzed as a
claim of discrimination. The question in claim 5 is whether the agency
violated complainant's right to official time as required by 29 C.F.R. §
1614.605. The record shows that complainant was ultimately allowed
official time. In the instant circumstances, we find no violation by
the agency under 29 C.F.R. § 1614.605.
After a review of the record in its entirety, the agency's decision is
AFFIRMED as we find no discrimination on the bases of race, color, sex,
national origin, or reprisal. | David Rodriguez v. United States Postal Service
01A61240
May 17, 2006
.
David Rodriguez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A61240
Agency No. 4F-920-0101-04Hearing No. 340-2005-00282X
DECISION
Complainant initiated contact with an EEO Counselor on February 19,
2004. Complainant filed a formal EEO complaint in which he claimed
that the agency discriminated against him on the bases of his race
(Mexican-American), color (brown), sex (male), national origin (Mexican)
and in reprisal for her previous EEO activity under Title VII when:
1. On February 7, 2004, complainant was denied an opportunity to become
a full-time regular Distribution Clerk.
2. On March 18, 2004, complainant was sent home early.
3. On April 2 and May 3, 2004, complainant was denied leave pursuant
to the Family Medical Leave Act (FMLA).
4. On April 2, 2004, complainant was denied administrative leave.
5. On June 4, 2004 and July 1, 2004, complainant was denied time to meet
with his EEO representative.
By partial dismissal dated July 21, 2004, the agency dismissed claim
(1) pursuant to 29 C.F.R. §1614.107(a)(1) on the grounds of failure to
state a claim and 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
determined that the issue of converting part-time clerks to regular
clerks is covered by the National Agreement and that therefore the
proper forum for the complaint is the negotiated grievance process and
not the EEO complaint process. The agency further determined that the
last conversion to a regular clerk position occurred and was posted
on December 13, 2003, and therefore complainant's contact of an EEO
Counselor on February 19, 2004, was after the expiration of the 45-day
limitation period for contacting an EEO Counselor.
The agency investigated the remaining claims of the complaint and
thereafter referred the matter to an Administrative Judge (AJ) pursuant
to complainant's request for a hearing. Without holding a hearing, the
AJ issued a decision finding no discrimination on the alleged bases.
The AJ found that complainant failed to establish a prima facie case
of discrimination on the bases of race, color, sex and national origin.
The AJ stated that complainant failed to identify any similarly situated
employees who under similar circumstances were treated more favorably
than complainant. According to the AJ, the agency set forth legitimate,
nondiscriminatory reasons for its actions which complainant did not
show were pretextual. The AJ noted that the agency granted complainant
FMLA leave and administrative leave on various occasions prior to and
subsequent to the identified incidents. The AJ further noted that
complainant was granted time to meet with his EEO Representative
subsequent to the time that he identified. By final action dated
November 3, 2005, the agency adopted the AJ's decision and determined
that no discrimination occurred.
On appeal, complainant disputes the agency's explanation for denying
him leave for eight hours. Complainant contends that he was working more
than an average of eight hours per day. Complainant argues that agency
officials knew that he had engaged in EEO activity and were purposely
denying him time to meet with his EEO representative as a means of
frustrating the EEO process and causing him further harm.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she 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, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Initially, we observe that complainant did not raise the dismissal of
claim (1) with the AJ and therefore we will not address the propriety
of the dismissal of claim (1) in this decision.
With regard to each claim, we shall assume arguendo that complainant
established a prima facie case on each of the alleged bases. The agency
stated with regard to claim (2) that complainant was sent home so that
budgeted hours could be acquired. According to the agency, complainant
was scheduled to begin his tour at 4:00 am, but his end tour depends on
the workload, and on March 18, 2004, complainant was sent home at 9:30.
As for claim (3), the agency stated that complainant was granted family
medical leave on the relevant dates. According to the agency, part-time
flexible employees are charged with six hours of leave for sick leave
or family medical leave absences since they are not full-time employees
and because their hours can change from day to day and week to week.
With respect to claim (4), the agency stated that complainant was late
for work due to a traffic problem. The agency asserted that tardiness
due to traffic congestion is not an acceptable reason for the granting of
administrative leave. With regard to claim (5), the agency stated that
complainant's requests to meet with an EEO representative were denied
because the EEO representative left work due to an emergency on June 4,
2004, and because the EEO representative was on annual leave on July 1,
2004. The agency noted that complainant's request to meet with another
EEO representative was not granted because complainant wanted to meet the
EEO representative outside the work location. We find that the agency
articulated legitimate, nondiscriminatory reasons for its alleged actions.
Upon review of the record, including complainant's statement on appeal,
we find that complainant has not established that the agency's stated
reasons were pretext intended to mask discriminatory motivation.
Complainant submits arguments that challenge the agency's positions, but
the arguments do not establish that he suffered disparate treatment as a
result of the alleged bases. Complainant has not shown that similarly
situated individuals outside his protected classes were treated more
favorably than complainant was treated. Complainant has also not shown
that his prior EEO activity was a reason for the alleged actions rather
than the legitimate, nondiscriminatory reasons set forth by the agency.
Regarding claim 5, we find that this issue should not be analyzed as a
claim of discrimination. The question in claim 5 is whether the agency
violated complainant's right to official time as required by 29 C.F.R. §
1614.605. The record shows that complainant was ultimately allowed
official time. In the instant circumstances, we find no violation by
the agency under 29 C.F.R. § 1614.605.
After a review of the record in its entirety, the agency's decision is
AFFIRMED as we find no discrimination on the bases of race, color, sex,
national origin, or reprisal.
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
May 17, 2006
__________________
Date
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367 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a45356.txt | 01a45356.txt | TXT | text/plain | 10,572 | Christopher A. Tolbert v. United States Postal Service 01A45356 December 9, 2004 . Christopher A. Tolbert, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area) Agency. | December 9, 2004 | Appeal Number: 01A45356
Legal Analysis:
the Commission finds that the
agency's dismissal for untimely counselor contact was improper. | Christopher A. Tolbert v. United States Postal Service
01A45356
December 9, 2004
.
Christopher A. Tolbert,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area)
Agency.
Appeal No. 01A45356
Agency No. 4J-604-0110-04
Complainant filed a timely appeal with this Commission from a final agency
decision dated June 2, 2004. The decision dismissed 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 May 19, 2004, complainant initiated contact with the EEO office
claiming that he was the victim of employment discrimination on the basis
of his sex (male) and in reprisal for prior EEO activity (arising under
Title VII).
In his formal complaint, filed on June 1, 2004, complainant alleged that
he was subjected to discrimination when on February 28, 2003 he was called
in for a pre-disciplinary discussion, and subsequently on March 5, 2003,
when he was issued a Notice of Proposed Removal that was to be effective
April 9, 2003.
In its final decision, the agency dismissed the complaint for untimely
EEO Counselor contact. Specifically, the agency determined that because
the latest alleged discriminatory incident took place on April 9, 2003,
complainant's contact of an EEO Counselor on May 19, 2004 was untimely.
The agency indicated that complainant had given no reason for his delay,
and pointed out that the agency's iComplaint Tracking System revealed
that complainant had previously filed a complaint through the EEO process
and thus cannot claim to be ignorant of the EEO time limits. Moreover,
the agency found that an EEO poster outlining the proper procedures for
EEO Counselor contact was displayed at complainant's workplace.
On appeal, complainant insists that he had no knowledge of the applicable
time limits. See Request for Appeal of Final Agency Decision (Appeal).
In response, the agency reiterates that complainant offered no adequate
excuse for his delay in contacting an EEO Counselor, and as such,
his behavior shows a failure to act diligently in pursuing his claim.
See Agency Response to Appellant's Appeal, at 2. As part of its proof,
the agency submits (1) a signed document from a manager stating that the
EEO poster was displayed visibly, and (2) a copy of the poster itself,
which explains that an employee must contact the EEO Counselor within
forty-five days of the date of the alleged discriminatory act.
The agency's focus on the delay in contacting the EEO Counselor and the
existence of EEO posters is misplaced. The agency is reminded that
as complainant had filed a mixed case appeal with the Merit Systems
Protection Board (MSPB), which was ultimately dismissed, a different
time limit for contacting the EEO Counselor applies. Regulation 29
C.F.R. § 1614.302(b) states in relevant part that if a person files a
mixed case appeal with the MSPB ... and the MSPB dismisses the appeal for
jurisdictional reasons, the agency shall promptly notify the individual in
writing of the right to contact an EEO Counselor within 45 days of receipt
of this notice and to file an EEO complaint, subject to § 1614.107.
The date on which the person filed his or her appeal with MSPB shall be
deemed to be the date of initial contact with the Counselor.
On appeal, complainant states that he had filed a mixed case appeal
within the specified time limits, which the MSPB then dismissed for lack
of jurisdiction. Appeal, at 2. Therefore, under the EEO Regulations,
complainant is deemed to have made initial contact with an EEO Counselor
on the date he filed the MSPB appeal. Once the MSPB dismissed the appeal,
the agency carried the obligation to inform complainant promptly and in
writing of his right to resume counseling within the forty-five days,
and to file a formal complaint. Thus, the Commission finds that the
agency's dismissal for untimely counselor contact was improper.
Accordingly, the Commission REVERSES the agency's final decision.
The complaint is hereby REMANDED to the agency for further processing
in accordance with this decision and 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:
December 9, 2004
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations
| [
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"29 C.F.R. § 1614.604",
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368 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01993905.txt | 01993905.txt | TXT | text/plain | 9,897 | March 19, 1999 | Appeal Number: 01993905
Case Facts:
The Commission finds that the agency's March 19, 1999 decision dismissing
the complaint on the grounds of untimely EEO Counselor contact and because
one of its issues had not been raised with the EEO Counselor, 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 13,
1998, claiming that she had been discriminated against on the bases
of race and physical disability when on July 29, 1998, she received a
letter from the Office of Worker's Compensation (OWCP) which stated that
a decision dated May 21, 1998, from the Employees Compensation Appeals
Board, recommended that she was totally disabled for the period May 26,
1995 to July 11, 1995, therefore she was entitled to compensation.
Complainant further claimed that the Los Angeles Outpatient Clinic
deliberately failed to provide information to OWCP in a timely manner,
which delayed her compensation. The record shows that Complainant
informed the EEO Counselor that she had filed prior EEO complaints.
Subsequently, Complainant filed a formal complaint claiming that she
had been discriminated against on the bases of race, national origin,
reprisal, and physical disability when:
(1) on August 4, 1998, she received a letter from the Department of
Labor which stated that it had tried to obtain her pay rate several
times and had not received a reply from the agency; and
(2) her employment was terminated.
By letter dated February 19, 1999, the agency requested that Complainant
explain the disparity between the date that she provided in her informal
EEO complaint (July 29, 1998) and the date that she provided in her
formal complaint (August 4, 1998), and to explain her delay in contacting
an EEO Counselor. The agency also asked Complainant to explain why
she had failed to raise the termination issue with the EEO counselor.
Complainant was advised that she needed to provide the requested
information within 15 calendar days of her receipt of the request.
On March 19, 1999, the agency issued a final decision dismissing
claim (1) on the grounds of untimely EEO counselor contact and on the
alternative grounds of failure to cooperate. The agency found that
after Complainant raised the August 4, 1998 date in her formal complaint,
a written request for additional information was sent to her, to which
she failed to respond. Based on that finding, the agency concluded that
the discriminatory event, (the letter received from OWCP) took place
on July 29, 1998, and her initial EEO Counselor contact on October 13,
1998, was beyond the 45-day time limit provided by
Legal Analysis:
The Commission finds that the agency's March 19, 1999 decision dismissing
the complaint on the grounds of untimely EEO Counselor contact and because
one of its issues had not been raised with the EEO Counselor, 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 13,
1998, claiming that she had been discriminated against on the bases
of race and physical disability when on July 29, 1998, she received a
letter from the Office of Worker's Compensation (OWCP) which stated that
a decision dated May 21, 1998, from the Employees Compensation Appeals
Board, recommended that she was totally disabled for the period May 26,
1995 to July 11, 1995, therefore she was entitled to compensation.
Complainant further claimed that the Los Angeles Outpatient Clinic
deliberately failed to provide information to OWCP in a timely manner,
which delayed her compensation. The record shows that Complainant
informed the EEO Counselor that she had filed prior EEO complaints.
Subsequently, Complainant filed a formal complaint claiming that she
had been discriminated against on the bases of race, national origin,
reprisal, and physical disability when:
(1) on August 4, 1998, she received a letter from the Department of
Labor which stated that it had tried to obtain her pay rate several
times and had not received a reply from the agency; and
(2) her employment was terminated.
By letter dated February 19, 1999, the agency requested that Complainant
explain the disparity between the date that she provided in her informal
EEO complaint (July 29, 1998) and the date that she provided in her
formal complaint (August 4, 1998), and to explain her delay in contacting
an EEO Counselor. The agency also asked Complainant to explain why
she had failed to raise the termination issue with the EEO counselor.
Complainant was advised that she needed to provide the requested
information within 15 calendar days of her receipt of the request.
On March 19, 1999, the agency issued a final decision dismissing
claim (1) on the grounds of untimely EEO counselor contact and on the
alternative grounds of failure to cooperate. The agency found that
after Complainant raised the August 4, 1998 date in her formal complaint,
a written request for additional information was sent to her, to which
she failed to respond. Based on that finding, the agency concluded that
the discriminatory event, (the letter received from OWCP) took place
on July 29, 1998, and her initial EEO Counselor contact on October 13,
1998, was beyond the 45-day time limit provided by EEOC Regulations.
Claim (2) was dismissed on the basis that it had not been brought to
the attention of the EEO counselor.
On appeal, Complainant contends, inter alia, that out of fear that if
she were to file a complaint the agency would continue to withhold the
requested information and obstruct, interfere with or delay payment of
compensation monies to her, [she] delayed contacting an EEO counselor.
A review of the record persuades the Commission that the dismissal of
claim 1 was appropriate. We have consistently held that a Complainant's
fear of reprisal is an insufficient justification for extending the time
limitation for contacting an EEO counselor. See Parker v. Department
of Veterans Affairs, EEOC Request No. 05940436 (February 9, 1995).
The matter addressed in claim 1 occurred in late July 1998, and
Complainant's initial EEO Counselor contact occurred on October 13, 1998.
Complainant has failed to present adequate justification for extending
the limitation period beyond forty-five days.
Final Decision:
Accordingly, the agency's decision to dismiss claim 1 for untimely EEO Counselor contact was proper and is AFFIRMED. | Victoria Tan-Gatue, )
Complainant, )
)
v. ) Appeal No. 01993905
) Agency No. 98-3736
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
______________________________)
DECISION
The Commission finds that the agency's March 19, 1999 decision dismissing
the complaint on the grounds of untimely EEO Counselor contact and because
one of its issues had not been raised with the EEO Counselor, 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 13,
1998, claiming that she had been discriminated against on the bases
of race and physical disability when on July 29, 1998, she received a
letter from the Office of Worker's Compensation (OWCP) which stated that
a decision dated May 21, 1998, from the Employees Compensation Appeals
Board, recommended that she was totally disabled for the period May 26,
1995 to July 11, 1995, therefore she was entitled to compensation.
Complainant further claimed that the Los Angeles Outpatient Clinic
deliberately failed to provide information to OWCP in a timely manner,
which delayed her compensation. The record shows that Complainant
informed the EEO Counselor that she had filed prior EEO complaints.
Subsequently, Complainant filed a formal complaint claiming that she
had been discriminated against on the bases of race, national origin,
reprisal, and physical disability when:
(1) on August 4, 1998, she received a letter from the Department of
Labor which stated that it had tried to obtain her pay rate several
times and had not received a reply from the agency; and
(2) her employment was terminated.
By letter dated February 19, 1999, the agency requested that Complainant
explain the disparity between the date that she provided in her informal
EEO complaint (July 29, 1998) and the date that she provided in her
formal complaint (August 4, 1998), and to explain her delay in contacting
an EEO Counselor. The agency also asked Complainant to explain why
she had failed to raise the termination issue with the EEO counselor.
Complainant was advised that she needed to provide the requested
information within 15 calendar days of her receipt of the request.
On March 19, 1999, the agency issued a final decision dismissing
claim (1) on the grounds of untimely EEO counselor contact and on the
alternative grounds of failure to cooperate. The agency found that
after Complainant raised the August 4, 1998 date in her formal complaint,
a written request for additional information was sent to her, to which
she failed to respond. Based on that finding, the agency concluded that
the discriminatory event, (the letter received from OWCP) took place
on July 29, 1998, and her initial EEO Counselor contact on October 13,
1998, was beyond the 45-day time limit provided by EEOC Regulations.
Claim (2) was dismissed on the basis that it had not been brought to
the attention of the EEO counselor.
On appeal, Complainant contends, inter alia, that out of fear that if
she were to file a complaint the agency would continue to withhold the
requested information and obstruct, interfere with or delay payment of
compensation monies to her, [she] delayed contacting an EEO counselor.
A review of the record persuades the Commission that the dismissal of
claim 1 was appropriate. We have consistently held that a Complainant's
fear of reprisal is an insufficient justification for extending the time
limitation for contacting an EEO counselor. See Parker v. Department
of Veterans Affairs, EEOC Request No. 05940436 (February 9, 1995).
The matter addressed in claim 1 occurred in late July 1998, and
Complainant's initial EEO Counselor contact occurred on October 13, 1998.
Complainant has failed to present adequate justification for extending
the limitation period beyond forty-five days. Accordingly, the agency's
decision to dismiss claim 1 for untimely EEO Counselor contact was proper
and is AFFIRMED. Because of our decision to affirm the dismissal of
claim 1 for the reason stated herein, we find it unnecessary to address
the agency's decision to dismiss this claim on alternative grounds.
Regarding claim 2, the record reflects that Complainant did not
undergo EEO counseling regarding her termination from agency employment.
The issue of her termination, moreover, is not like or related to matters
for which she had undergone EEO counseling. Accordingly, the agency's
decision to dismiss claim 2 was proper and is 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:
July 27, 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.
| [
"Parker v. Department of Veterans Affairs, EEOC Request No. 05940436 (February 9, 1995)",
"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"
] | [
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369 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120080617.txt | 0120080617.txt | TXT | text/plain | 31,254 | Maureen McManus, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Eastern Area), Agency. | November 9, 2010 | Appeal Number: 0120080617
Background:
At the time of events giving rise to this complaint, Complainant worked
as a Manager, Equal Employment Opportunity (EEO) Alternative Dispute
Resolution (ADR) Specialist, EAS-19, at the Agencyâs South Jersey EEO
District Office (DO) in Bellmawr, New Jersey.
On July 22, 2005, Complainant initiated EEO counselor contact, and on
December 16, 2005, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the bases of race (Caucasian), sex
(female), color (White), disability (Migraine Headaches, Depression,
Guillain-Barré Syndrome (GBS),1 Anxiety/Stress, and Neuropathy), age
(44 years old), and in reprisal for prior protected EEO activity under
Title VII of the Civil Rights Act of 1964 when:
1. From August 5, 2003 and continuing, the Agency failed to provide her
with a reasonable accommodation by providing her with proper staffing;
2. In February 2005, the Area Manager of EEO Compliance and Appeals
(Manager) harassed, belittled, blamed, questioned regarding her Family
Medical Leave Act (FMLA) request and annual leave request;
3. On June 15, 2005, she was bullied, belittled, criticized, and subjected
to a hostile work environment when her Manager visited Complainantâs
office and declared that she was not going to accept Complainantâs
explanation that the South Jersey DO was understaffed as an excuse for the
backlog, and the Manager made no suggestions on how to assist Complainant;
4. On June 24, 2005, only one position was approved and posted for the
South Jersey DO;
5. On July 13, 2005 and again on July 21, 2005, the Agency cancelled
Complainantâs pre-approved training;
6. On August 2, 2005, Complainant received the Office of Workerâs
Compensation Programs (OWCP) forms that she requested on July 21, 2001,
because the Manager delayed sending the forms to Complainant;
7. On August 29, 2005, she was not selected for an EAS-19 EEO ADR
Specialist position; and
8. Complainant did not receive a response to a letter sent to management
in which Complainant inquired about the reasons for her non-selection.
In a letter dated January 3, 2006, the Agency dismissed claims 1, 2, 3, 4,
6, and 8 and accepted claims 5 and 7 for investigation. Specifically,
the Agency dismissed claims 1, 2, and 6 on the basis that they were
initiated by untimely EEO counselor contact. The Agency dismissed claims
3, 4, and 8 on the basis that these matters failed to state a claim.
The Agency accepted claims 5 and 7 for investigation, but Complainant
nonetheless addressed some of the dismissed claims in her investigative
affidavit statement.
Complainant stated that the Agency failed to provide her with a reasonable
accommodation because, unlike other offices in the Region, the South
Jersey DO did not have an EAS-17 EEO Dispute Resolution Specialist
to assist her, which overburdened Complainant with a heavy workload
and stress. Exhibit A, p. 2. Complainant further stated that from the
beginning of her tenure at the South Jersey DO, she was the only staff
member responsible for processing the claims of approximately 8,000
employees. Complainant further stated that even though she did not
request a reasonable accommodation for her condition, Agency officials
were aware of the requirement to provide a reasonable accommodation even
if a disabled employee did not request an accommodation. Id., p. 3.
Complainant further stated that although there was a need for new
positions in the South Jersey DO, the Manager only approved one position.
Id., p. 5. Complainant further contended that the Manager harassed
her by bullying, chastising, blaming, yelling and screaming, and hanging
the telephone up on her. Id., p. 12. Complainant further stated that
the Manager would respond in a ânastyâ tone to Complainant when
Complainant made the Manager aware of her mistakes and made Complainant
clean up the office. Id. Complainant further stated that the Manager
also canceled her pre-approved training at the Examining Conflict in
Employment Law (EXEL) Conference when she became aware of an Agency
realignment that would result in Complainant reporting directly to the
Manager. Id. Complainant stated that on July 13, 2005, the Manager
telephoned her and immediately began to âbullyâ her by discussing
the case backlog in a resentful tone that did not give Complainant the
opportunity to explain the backlog. Id., p. 16. Complainant further
stated that the Manager also persistently interrupted Complainant, blamed
her for the backlog, and said hat she was not allowing Complainant to
attend the EXCEL Conference. Id.
Complainant further stated that on July 21, 2005, she informed the Manager
via email that she wanted earn Continuation of Pay (COP) and requested
that she send her the appropriate paperwork. Id., p. 18. She stated
that she did not receive the request paperwork from the Manager until
August 2, 2005. Id.
Complainant also stated that she applied for two EAS-19 vacant EEO ADR
Specialist positions in the Philadelphia District EEO Office. Id.,
p. 19. Complainant stated that two EAS-17 African-American Dispute
Resolution Specialists were selected for the position, although she
was more qualified for the positions because she already was an EAS-19
ADR Manager and had increased the redress participation rate from 14
percent to 94.4 percent by the end of the second quarter of her tenure
in South Jersey. Id.
The Manager stated that while EEO professionals were encouraged to
attend the EXCEL conference, it was not mandatory. The Manager further
stated that effective April 2, 2005, District EEO employees became her
direct reports, but she did not have enough money in the budget to pay
for employees to attend the conference. Id. She stated that on July
13, 2005, she learned that Complainant and two other employees had not
completed an assignment she had given them on June 15, 2005, when she
visited the South Jersey office. Id., p. 3. The Manager stated that the
assignment was to close all EEO counselings that began in 2004 by July
1, 2005. Id. She stated that when she called Complainant on July 13,
2005 to inquire why the 2004 counselings had not been closed, Complainant
did not have an acceptable explanation, and she told Complainant that
she was considering not allowing her to attend the conference because
of the âpoor condition of the office.â Id. She stated that she
told Complainant that her co-worker who had just become an EEO employee
on May 23, 2005 deserved to go to the conference more than Complainant
because Complainant was responsible for completing the backlog. Id.,
p. 3. The Manager further stated that she was not involved in the
selection process for the EEO ADR Specialist position in Philadelphia
and was unaware of any previous EEO activity by Complainant. Id.
The Selecting Official for the Philadelphia District EEO ADR Specialist
position stated that two African-American females (S1 and S2) were
selected for the positions. Affidavit C, p. 1. She stated that during
the interview for the position, Complainant did not provide complete
answers to four questions regarding the role of EEO counselors, the
jurisdiction of the Merit Systems Protection Board (MSPB), and the
conversion and participation rates of the Philadelphia Metropolitan
District, and she had to prompt Complainant her to obtain more
information. Id., p. 2. The Selecting Official further stated that
several of Complainantâs Knowledge, Skill, and Ability (KSA) responses
were not as strong as the selecteesâ, particularly in response to
KSA elements 1, 3, 4, and 6.2 Id. She stated that S1 transferred to
another federal agency effective October 31, 2005, and the position was
again posted through a vacancy announcement. Id., p. 3. The Selecting
Official stated that Complainant applied for and was awarded the position,
effective January 7, 2006. Id. The Selecting Official further stated
that she was unaware of any previous EEO activity by Complainant.
The record contains a copy of the vacancy announcement for the EAS-19 EEO
ADR Specialist positions for the Philadelphia District. Exhibit C, p. 12.
The announcement stated that all qualified EAS career EEO employees
impacted by the EEO restructuring were eligible to apply for the position,
and the main duty of the position was to perform EEO dispute resolution
through pre-complaint counseling/processing and ADR activities. Id.
Additionally, the announcement stated that applicants must submit a form
application for promotion and a statement addressing each KSA. Id.
The record also contains a copy of the Selecting Officialâs matrix for
the Philadelphia position. Affidavit C, p. 69. The document reflects
that S1, S2, and three other applicants were rated âexcellentâ in all
six KSA elements, and Complainant was rated âstrongâ in four elements
(answers 1, 3, 4, and 6) and âexcellentâ in two categories. Id.
On January 3, 2006, the Agency dismissed claims 1, 2, 3, 4, 6, and
8, and accepted claims 5 and 7 for investigation. Specifically, the
Agency determined that claims 1, 2, and 6 were initiated by untimely
EEO counselor contact, and claims 3, 4, and 8 failed to state a claim.
At the conclusion of the investigation of the accepted claims, the
Agency provided Complainant with a copy of the report of investigation
and notice of her right to request a hearing before an AJ.
AJâs Decision
Complainant timely requested a hearing before an AJ. Complainant also
asked the AJ to reinstate the dismissed claims. In an order dated January
17, 2007, the AJ affirmed the dismissal of claims 1, 2, 4, and 6, but on
the basis that these matters failed to state a claim. The AJ further
found that the Agency improperly dismissed claim 3. The AJ did not
address claim 8. On March 30, 2007, the Agency moved for a decision
without a hearing, to which Complainant responded in opposition. The AJ
granted the Agencyâs motion and issued a decision without a hearing
dated September 21, 2007. Specifically, the AJ found that with respect
to claim 3, Complainant failed to state a claim because she failed to
show how she was aggrieved by the alleged actions. Regarding claim 5,
the AJ found that Complainant failed to show a prima facie case of
unlawful discrimination. With respect to claim 7, the AJ determined
that Complainant failed to prove that the Agencyâs non-discriminatory
explanation was a pretext for unlawful discrimination. The Agency
subsequently issued a final order fully implementing the AJâs findings.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ erred when she affirmed the
Agencyâs dismissal of claims 1, 2, 4, 6, and 8. Complainant contends
that the dismissed claims are part of her ongoing hostile work environment
claim. Complainant further contends that the AJ improperly found no
discrimination with respect to claims 3 and 5. Complainant argues that
she should have been selected for the EAS-19 EEO ADR Specialist position
in Philadelphia because she already had been in an EAS-19 EEO position
for over two years, whereas the selectees were only at the EAS-17
level; S1 had only been in her EEO position for less than two years;
Complainant had received several awards; Complainant had over 10 years
of EEO experience; and, the selecting official changed Complainantâs
ranking during the selection process but increased another applicantâs
ranking. The Agency did not submit a statement on appeal.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJâs legal
and factual conclusions, and the Agencyâs final order adopting them,
de novo. See 29 C.F.R. § 1614.405(a) (stating that a âdecision on an
appeal from an Agencyâs final action shall be based on a de novo review
. . .â); see also Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (MD-110), at Chap. 9, § VI.B. (Nov. 9, 1999)
(providing that an administrative judgeâs âdecision to issue a
Legal Analysis:
The Commission accepts the appeal pursuant to
29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agencyâs final order.
ISSUES PRESENTED
The issues presented are whether the EEOC Administrative Judge (AJ)
properly affirmed the Agencyâs procedural dismissals and whether the
AJ properly issued a decision without a hearing in which she found that
Complainant was not subjected to unlawful discrimination or harassment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Manager, Equal Employment Opportunity (EEO) Alternative Dispute
Resolution (ADR) Specialist, EAS-19, at the Agencyâs South Jersey EEO
District Office (DO) in Bellmawr, New Jersey.
On July 22, 2005, Complainant initiated EEO counselor contact, and on
December 16, 2005, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the bases of race (Caucasian), sex
(female), color (White), disability (Migraine Headaches, Depression,
Guillain-Barré Syndrome (GBS),1 Anxiety/Stress, and Neuropathy), age
(44 years old), and in reprisal for prior protected EEO activity under
Title VII of the Civil Rights Act of 1964 when:
1. From August 5, 2003 and continuing, the Agency failed to provide her
with a reasonable accommodation by providing her with proper staffing;
2. In February 2005, the Area Manager of EEO Compliance and Appeals
(Manager) harassed, belittled, blamed, questioned regarding her Family
Medical Leave Act (FMLA) request and annual leave request;
3. On June 15, 2005, she was bullied, belittled, criticized, and subjected
to a hostile work environment when her Manager visited Complainantâs
office and declared that she was not going to accept Complainantâs
explanation that the South Jersey DO was understaffed as an excuse for the
backlog, and the Manager made no suggestions on how to assist Complainant;
4. On June 24, 2005, only one position was approved and posted for the
South Jersey DO;
5. On July 13, 2005 and again on July 21, 2005, the Agency cancelled
Complainantâs pre-approved training;
6. On August 2, 2005, Complainant received the Office of Workerâs
Compensation Programs (OWCP) forms that she requested on July 21, 2001,
because the Manager delayed sending the forms to Complainant;
7. On August 29, 2005, she was not selected for an EAS-19 EEO ADR
Specialist position; and
8. Complainant did not receive a response to a letter sent to management
in which Complainant inquired about the reasons for her non-selection.
In a letter dated January 3, 2006, the Agency dismissed claims 1, 2, 3, 4,
6, and 8 and accepted claims 5 and 7 for investigation. Specifically,
the Agency dismissed claims 1, 2, and 6 on the basis that they were
initiated by untimely EEO counselor contact. The Agency dismissed claims
3, 4, and 8 on the basis that these matters failed to state a claim.
The Agency accepted claims 5 and 7 for investigation, but Complainant
nonetheless addressed some of the dismissed claims in her investigative
affidavit statement.
Complainant stated that the Agency failed to provide her with a reasonable
accommodation because, unlike other offices in the Region, the South
Jersey DO did not have an EAS-17 EEO Dispute Resolution Specialist
to assist her, which overburdened Complainant with a heavy workload
and stress. Exhibit A, p. 2. Complainant further stated that from the
beginning of her tenure at the South Jersey DO, she was the only staff
member responsible for processing the claims of approximately 8,000
employees. Complainant further stated that even though she did not
request a reasonable accommodation for her condition, Agency officials
were aware of the requirement to provide a reasonable accommodation even
if a disabled employee did not request an accommodation. Id., p. 3.
Complainant further stated that although there was a need for new
positions in the South Jersey DO, the Manager only approved one position.
Id., p. 5. Complainant further contended that the Manager harassed
her by bullying, chastising, blaming, yelling and screaming, and hanging
the telephone up on her. Id., p. 12. Complainant further stated that
the Manager would respond in a ânastyâ tone to Complainant when
Complainant made the Manager aware of her mistakes and made Complainant
clean up the office. Id. Complainant further stated that the Manager
also canceled her pre-approved training at the Examining Conflict in
Employment Law (EXEL) Conference when she became aware of an Agency
realignment that would result in Complainant reporting directly to the
Manager. Id. Complainant stated that on July 13, 2005, the Manager
telephoned her and immediately began to âbullyâ her by discussing
the case backlog in a resentful tone that did not give Complainant the
opportunity to explain the backlog. Id., p. 16. Complainant further
stated that the Manager also persistently interrupted Complainant, blamed
her for the backlog, and said hat she was not allowing Complainant to
attend the EXCEL Conference. Id.
Complainant further stated that on July 21, 2005, she informed the Manager
via email that she wanted earn Continuation of Pay (COP) and requested
that she send her the appropriate paperwork. Id., p. 18. She stated
that she did not receive the request paperwork from the Manager until
August 2, 2005. Id.
Complainant also stated that she applied for two EAS-19 vacant EEO ADR
Specialist positions in the Philadelphia District EEO Office. Id.,
p. 19. Complainant stated that two EAS-17 African-American Dispute
Resolution Specialists were selected for the position, although she
was more qualified for the positions because she already was an EAS-19
ADR Manager and had increased the redress participation rate from 14
percent to 94.4 percent by the end of the second quarter of her tenure
in South Jersey. Id.
The Manager stated that while EEO professionals were encouraged to
attend the EXCEL conference, it was not mandatory. The Manager further
stated that effective April 2, 2005, District EEO employees became her
direct reports, but she did not have enough money in the budget to pay
for employees to attend the conference. Id. She stated that on July
13, 2005, she learned that Complainant and two other employees had not
completed an assignment she had given them on June 15, 2005, when she
visited the South Jersey office. Id., p. 3. The Manager stated that the
assignment was to close all EEO counselings that began in 2004 by July
1, 2005. Id. She stated that when she called Complainant on July 13,
2005 to inquire why the 2004 counselings had not been closed, Complainant
did not have an acceptable explanation, and she told Complainant that
she was considering not allowing her to attend the conference because
of the âpoor condition of the office.â Id. She stated that she
told Complainant that her co-worker who had just become an EEO employee
on May 23, 2005 deserved to go to the conference more than Complainant
because Complainant was responsible for completing the backlog. Id.,
p. 3. The Manager further stated that she was not involved in the
selection process for the EEO ADR Specialist position in Philadelphia
and was unaware of any previous EEO activity by Complainant. Id.
The Selecting Official for the Philadelphia District EEO ADR Specialist
position stated that two African-American females (S1 and S2) were
selected for the positions. Affidavit C, p. 1. She stated that during
the interview for the position, Complainant did not provide complete
answers to four questions regarding the role of EEO counselors, the
jurisdiction of the Merit Systems Protection Board (MSPB), and the
conversion and participation rates of the Philadelphia Metropolitan
District, and she had to prompt Complainant her to obtain more
information. Id., p. 2. The Selecting Official further stated that
several of Complainantâs Knowledge, Skill, and Ability (KSA) responses
were not as strong as the selecteesâ, particularly in response to
KSA elements 1, 3, 4, and 6.2 Id. She stated that S1 transferred to
another federal agency effective October 31, 2005, and the position was
again posted through a vacancy announcement. Id., p. 3. The Selecting
Official stated that Complainant applied for and was awarded the position,
effective January 7, 2006. Id. The Selecting Official further stated
that she was unaware of any previous EEO activity by Complainant.
The record contains a copy of the vacancy announcement for the EAS-19 EEO
ADR Specialist positions for the Philadelphia District. Exhibit C, p. 12.
The announcement stated that all qualified EAS career EEO employees
impacted by the EEO restructuring were eligible to apply for the position,
and the main duty of the position was to perform EEO dispute resolution
through pre-complaint counseling/processing and ADR activities. Id.
Additionally, the announcement stated that applicants must submit a form
application for promotion and a statement addressing each KSA. Id.
The record also contains a copy of the Selecting Officialâs matrix for
the Philadelphia position. Affidavit C, p. 69. The document reflects
that S1, S2, and three other applicants were rated âexcellentâ in all
six KSA elements, and Complainant was rated âstrongâ in four elements
(answers 1, 3, 4, and 6) and âexcellentâ in two categories. Id.
On January 3, 2006, the Agency dismissed claims 1, 2, 3, 4, 6, and
8, and accepted claims 5 and 7 for investigation. Specifically, the
Agency determined that claims 1, 2, and 6 were initiated by untimely
EEO counselor contact, and claims 3, 4, and 8 failed to state a claim.
At the | 
Maureen McManus,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120080617
Hearing No. 530-2006-00185X
Agency No. 4C-080-0080-05
DECISION
On November 9, 2010, Complainant timely filed an appeal from the
Agencyâs October 10, 2010, final order 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., 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 Commission accepts the appeal pursuant to
29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agencyâs final order.
ISSUES PRESENTED
The issues presented are whether the EEOC Administrative Judge (AJ)
properly affirmed the Agencyâs procedural dismissals and whether the
AJ properly issued a decision without a hearing in which she found that
Complainant was not subjected to unlawful discrimination or harassment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Manager, Equal Employment Opportunity (EEO) Alternative Dispute
Resolution (ADR) Specialist, EAS-19, at the Agencyâs South Jersey EEO
District Office (DO) in Bellmawr, New Jersey.
On July 22, 2005, Complainant initiated EEO counselor contact, and on
December 16, 2005, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the bases of race (Caucasian), sex
(female), color (White), disability (Migraine Headaches, Depression,
Guillain-Barré Syndrome (GBS),1 Anxiety/Stress, and Neuropathy), age
(44 years old), and in reprisal for prior protected EEO activity under
Title VII of the Civil Rights Act of 1964 when:
1. From August 5, 2003 and continuing, the Agency failed to provide her
with a reasonable accommodation by providing her with proper staffing;
2. In February 2005, the Area Manager of EEO Compliance and Appeals
(Manager) harassed, belittled, blamed, questioned regarding her Family
Medical Leave Act (FMLA) request and annual leave request;
3. On June 15, 2005, she was bullied, belittled, criticized, and subjected
to a hostile work environment when her Manager visited Complainantâs
office and declared that she was not going to accept Complainantâs
explanation that the South Jersey DO was understaffed as an excuse for the
backlog, and the Manager made no suggestions on how to assist Complainant;
4. On June 24, 2005, only one position was approved and posted for the
South Jersey DO;
5. On July 13, 2005 and again on July 21, 2005, the Agency cancelled
Complainantâs pre-approved training;
6. On August 2, 2005, Complainant received the Office of Workerâs
Compensation Programs (OWCP) forms that she requested on July 21, 2001,
because the Manager delayed sending the forms to Complainant;
7. On August 29, 2005, she was not selected for an EAS-19 EEO ADR
Specialist position; and
8. Complainant did not receive a response to a letter sent to management
in which Complainant inquired about the reasons for her non-selection.
In a letter dated January 3, 2006, the Agency dismissed claims 1, 2, 3, 4,
6, and 8 and accepted claims 5 and 7 for investigation. Specifically,
the Agency dismissed claims 1, 2, and 6 on the basis that they were
initiated by untimely EEO counselor contact. The Agency dismissed claims
3, 4, and 8 on the basis that these matters failed to state a claim.
The Agency accepted claims 5 and 7 for investigation, but Complainant
nonetheless addressed some of the dismissed claims in her investigative
affidavit statement.
Complainant stated that the Agency failed to provide her with a reasonable
accommodation because, unlike other offices in the Region, the South
Jersey DO did not have an EAS-17 EEO Dispute Resolution Specialist
to assist her, which overburdened Complainant with a heavy workload
and stress. Exhibit A, p. 2. Complainant further stated that from the
beginning of her tenure at the South Jersey DO, she was the only staff
member responsible for processing the claims of approximately 8,000
employees. Complainant further stated that even though she did not
request a reasonable accommodation for her condition, Agency officials
were aware of the requirement to provide a reasonable accommodation even
if a disabled employee did not request an accommodation. Id., p. 3.
Complainant further stated that although there was a need for new
positions in the South Jersey DO, the Manager only approved one position.
Id., p. 5. Complainant further contended that the Manager harassed
her by bullying, chastising, blaming, yelling and screaming, and hanging
the telephone up on her. Id., p. 12. Complainant further stated that
the Manager would respond in a ânastyâ tone to Complainant when
Complainant made the Manager aware of her mistakes and made Complainant
clean up the office. Id. Complainant further stated that the Manager
also canceled her pre-approved training at the Examining Conflict in
Employment Law (EXEL) Conference when she became aware of an Agency
realignment that would result in Complainant reporting directly to the
Manager. Id. Complainant stated that on July 13, 2005, the Manager
telephoned her and immediately began to âbullyâ her by discussing
the case backlog in a resentful tone that did not give Complainant the
opportunity to explain the backlog. Id., p. 16. Complainant further
stated that the Manager also persistently interrupted Complainant, blamed
her for the backlog, and said hat she was not allowing Complainant to
attend the EXCEL Conference. Id.
Complainant further stated that on July 21, 2005, she informed the Manager
via email that she wanted earn Continuation of Pay (COP) and requested
that she send her the appropriate paperwork. Id., p. 18. She stated
that she did not receive the request paperwork from the Manager until
August 2, 2005. Id.
Complainant also stated that she applied for two EAS-19 vacant EEO ADR
Specialist positions in the Philadelphia District EEO Office. Id.,
p. 19. Complainant stated that two EAS-17 African-American Dispute
Resolution Specialists were selected for the position, although she
was more qualified for the positions because she already was an EAS-19
ADR Manager and had increased the redress participation rate from 14
percent to 94.4 percent by the end of the second quarter of her tenure
in South Jersey. Id.
The Manager stated that while EEO professionals were encouraged to
attend the EXCEL conference, it was not mandatory. The Manager further
stated that effective April 2, 2005, District EEO employees became her
direct reports, but she did not have enough money in the budget to pay
for employees to attend the conference. Id. She stated that on July
13, 2005, she learned that Complainant and two other employees had not
completed an assignment she had given them on June 15, 2005, when she
visited the South Jersey office. Id., p. 3. The Manager stated that the
assignment was to close all EEO counselings that began in 2004 by July
1, 2005. Id. She stated that when she called Complainant on July 13,
2005 to inquire why the 2004 counselings had not been closed, Complainant
did not have an acceptable explanation, and she told Complainant that
she was considering not allowing her to attend the conference because
of the âpoor condition of the office.â Id. She stated that she
told Complainant that her co-worker who had just become an EEO employee
on May 23, 2005 deserved to go to the conference more than Complainant
because Complainant was responsible for completing the backlog. Id.,
p. 3. The Manager further stated that she was not involved in the
selection process for the EEO ADR Specialist position in Philadelphia
and was unaware of any previous EEO activity by Complainant. Id.
The Selecting Official for the Philadelphia District EEO ADR Specialist
position stated that two African-American females (S1 and S2) were
selected for the positions. Affidavit C, p. 1. She stated that during
the interview for the position, Complainant did not provide complete
answers to four questions regarding the role of EEO counselors, the
jurisdiction of the Merit Systems Protection Board (MSPB), and the
conversion and participation rates of the Philadelphia Metropolitan
District, and she had to prompt Complainant her to obtain more
information. Id., p. 2. The Selecting Official further stated that
several of Complainantâs Knowledge, Skill, and Ability (KSA) responses
were not as strong as the selecteesâ, particularly in response to
KSA elements 1, 3, 4, and 6.2 Id. She stated that S1 transferred to
another federal agency effective October 31, 2005, and the position was
again posted through a vacancy announcement. Id., p. 3. The Selecting
Official stated that Complainant applied for and was awarded the position,
effective January 7, 2006. Id. The Selecting Official further stated
that she was unaware of any previous EEO activity by Complainant.
The record contains a copy of the vacancy announcement for the EAS-19 EEO
ADR Specialist positions for the Philadelphia District. Exhibit C, p. 12.
The announcement stated that all qualified EAS career EEO employees
impacted by the EEO restructuring were eligible to apply for the position,
and the main duty of the position was to perform EEO dispute resolution
through pre-complaint counseling/processing and ADR activities. Id.
Additionally, the announcement stated that applicants must submit a form
application for promotion and a statement addressing each KSA. Id.
The record also contains a copy of the Selecting Officialâs matrix for
the Philadelphia position. Affidavit C, p. 69. The document reflects
that S1, S2, and three other applicants were rated âexcellentâ in all
six KSA elements, and Complainant was rated âstrongâ in four elements
(answers 1, 3, 4, and 6) and âexcellentâ in two categories. Id.
On January 3, 2006, the Agency dismissed claims 1, 2, 3, 4, 6, and
8, and accepted claims 5 and 7 for investigation. Specifically, the
Agency determined that claims 1, 2, and 6 were initiated by untimely
EEO counselor contact, and claims 3, 4, and 8 failed to state a claim.
At the conclusion of the investigation of the accepted claims, the
Agency provided Complainant with a copy of the report of investigation
and notice of her right to request a hearing before an AJ.
AJâs Decision
Complainant timely requested a hearing before an AJ. Complainant also
asked the AJ to reinstate the dismissed claims. In an order dated January
17, 2007, the AJ affirmed the dismissal of claims 1, 2, 4, and 6, but on
the basis that these matters failed to state a claim. The AJ further
found that the Agency improperly dismissed claim 3. The AJ did not
address claim 8. On March 30, 2007, the Agency moved for a decision
without a hearing, to which Complainant responded in opposition. The AJ
granted the Agencyâs motion and issued a decision without a hearing
dated September 21, 2007. Specifically, the AJ found that with respect
to claim 3, Complainant failed to state a claim because she failed to
show how she was aggrieved by the alleged actions. Regarding claim 5,
the AJ found that Complainant failed to show a prima facie case of
unlawful discrimination. With respect to claim 7, the AJ determined
that Complainant failed to prove that the Agencyâs non-discriminatory
explanation was a pretext for unlawful discrimination. The Agency
subsequently issued a final order fully implementing the AJâs findings.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ erred when she affirmed the
Agencyâs dismissal of claims 1, 2, 4, 6, and 8. Complainant contends
that the dismissed claims are part of her ongoing hostile work environment
claim. Complainant further contends that the AJ improperly found no
discrimination with respect to claims 3 and 5. Complainant argues that
she should have been selected for the EAS-19 EEO ADR Specialist position
in Philadelphia because she already had been in an EAS-19 EEO position
for over two years, whereas the selectees were only at the EAS-17
level; S1 had only been in her EEO position for less than two years;
Complainant had received several awards; Complainant had over 10 years
of EEO experience; and, the selecting official changed Complainantâs
ranking during the selection process but increased another applicantâs
ranking. The Agency did not submit a statement on appeal.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJâs legal
and factual conclusions, and the Agencyâs final order adopting them,
de novo. See 29 C.F.R. § 1614.405(a) (stating that a âdecision on an
appeal from an Agencyâs final action shall be based on a de novo review
. . .â); see also Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (MD-110), at Chap. 9, § VI.B. (Nov. 9, 1999)
(providing that an administrative judgeâs âdecision to issue a
decision without a hearing pursuant to [29 C.F.R. § 1614.109(g)] will
be reviewed de novoâ). 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 AJâs, and Agencyâs, factual
conclusions and legal analysis â 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 ârequires that the Commission examine the record without
regard to the factual and legal determinations of the previous decision
maker,â and that EEOC âreview the documents, statements, and testimony
of record, including any timely and relevant submissions of the parties,
and . . . issue its decision based on the Commissionâs own assessment
of the record and its interpretation of the lawâ).
ANALYSIS AND FINDINGS
The Commissionâs regulations allow an AJ to issue a decision without a
hearing when he or she 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 courtâs 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 partyâs favor. Id. at 255. An issue of fact is
âgenuineâ 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 âmaterialâ 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. Depât of Defense, EEOC Appeal No. 01A24206
(July 11, 2003). We find that the AJ properly issued a decision without
a hearing because Complainant failed to show that a genuine issue of
material fact or credibility existed, such that a hearing was warranted.
Procedural Dismissals
The Agency dismissed claims 1, 2, 3, 4, 6, and 8. We note that claims
1 and 2 allege that Complainant was denied a reasonable accommodation in
August 2003, and questioned regarding her FMLA and annual leave request in
February 2005. 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
âdiscrete discriminatory acts are not actionable if time barred,
even when they are related to acts alleged in timely filed charges.â
Id. Finally, the Court held that such untimely discrete acts may be used
as background evidence in support of a timely claim. Id. We determine
that claims 1 and 2 are discrete acts, and Complainant did not initiate
EEO counselor contact within 45 days of these alleged actions.
Moreover, claim 6 alleges that Complainant did not receive an OWCP
form she requested in July 2001 until August 2005. The Commission
has consistently held that a complainant must act with due diligence
in the pursuit of her claim or the doctrine of laches may apply. See
O'Dell v. Dep't of Health and Human Services, EEOC Request No. 05901130
(Dec. 27, 1990). The doctrine of laches is an equitable remedy under
which an individual's failure to pursue diligently a course of action
could bar a claim. In this case, Complainant waited approximately four
years before contacting an EEO counselor about the Agencyâs alleged
failure to timely provide her with requested OWCP forms. We find that
Complainant failed to act with due diligence regarding this matter.
On appeal, Complainant has presented no persuasive arguments or evidence
warranting an extension of the time limit for initiating EEO Counselor
contact for claims 1, 2, and 6. Thus, we find that the Agency properly
dismissed claims 1, 2, and 6 on the basis that they were initiated by
untimely EEO counselor contact.
However, we determine that the AJ and Agency improperly fragmented
and claims 3, 4, 5, 7, and 8. A fair reading of the complaint, in
conjunction with the related EEO counseling report, indicates that these
matters constitute a single claim of ongoing harassment, not distinct,
separate claims. Consequently, we review claims 3, 4, 5, 7, and 8 as
a single ongoing harassment claim below.
Disparate Treatment and Hostile Work Environment
Generally, claims of disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for
Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), affâd,
545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she 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); Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (applying the analytical
framework described in McDonnell Douglas to an ADEA disparate treatment
claim).3 For instance, to establish a prima facie case of reprisal,
Complainant must show that (1) he engaged in protected EEO activity;
(2) the Agency was aware of the protected activity; (3) subsequently,
he was subjected to adverse treatment by the Agency; and (4) a nexus
exists between his protected activity and the adverse treatment. Whitmire
v. Depât of the Air Force, EEOC Appeal No. 01A00340 (September 25,
2000).
Once complainant has established a prima facie case, the burden of
production then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Depât 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 Agencyâs 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. Maryâs Honor Center v. Hicks. 509 U.S. 502 (1993);
U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711.715-716
(1983).
To establish a claim of harassment, a complainant must show that: (1)
she belongs to a statutorily protected class; (2) she was subjected to
harassment in the form of unwelcome verbal or physical conduct involving
the protected class; (3) the harassment complained of was based on
her statutorily protected class; (4) the harassment affected a term or
condition of employment and/or had the purpose or effect of unreasonably
interfering with the work environment and/or creating an intimidating,
hostile, or offensive work environment; and (5) there is a basis for
imputing liability to the employer. See Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982).
Claims 5 and 7
For purposes of analysis, we assume without so finding that Complainant
is a qualified individual with a disability and established a prima
facie case of discrimination. Nonetheless, we further find that the
Agency provided legitimate, non-discriminatory reasons for its actions
for claims 5 and 7. Specifically, the Agency stated that Complainantâs
participation in the EXCEL conference was canceled because her office had
a severe backlog of EEO cases that needed to be cleared, and Complainant
had not met managementâs deadline to clear the backlog. The Agency
further stated that Complainant was not selected for the Philadelphia
EAS-19 EEO ADR Specialist position because several of Complainantâs
KSA responses were not as strong as the selecteesâ responses, and
Complainant did not provide complete answers to four questions during
the interview.
Complainant contends that she possessed superior qualifications for
the position because she was already and EAS-19 EEO Manager. However,
the record reflects that S1 had substantial experience as an EEO Dispute
Resolution Specialist, EEO Complaints Investigator, and Human Resources
Assistant. Moreover, S2 had experience as an EEO Dispute Resolution
Specialist, EEO Counselor, EEO Investigator, Human Resources Associate,
and EAS-19 Acting Manager of EEO Dispute Resolution. Therefore, we
do not find that Complainantâs qualifications were plainly superior
to the selecteesâ qualifications. Further, we note that an agency
has broad discretion to carry out personnel decisions and should
not be second-guessed by the reviewing authority absent evidence of
unlawful motivation. Burdine, 450 U.S. at 259; Stiles v. Depât of
Transportation, EEOC Request No. 05910577 (June 27, 1991) (in the absence
of plainly superior qualifications belonging to a complainant to compel a
finding of pretext, the Commission will not second-guess the agencyâs
personnel decisions). Also, employers are afforded greater discretion
when choosing management-level employees. Wrenn v. Gould, 808 F.2d 493,
502 (6th Cir. 1987). Additionally, we note that Complainant and both
selectees are females, greatly undermining Complainantâs claim that she
was not selected because she is female. Thus, we find that Complainant
failed to provide any evidence from which a reasonable fact-finder could
conclude that the Agencyâs non-discriminatory explanations for its
actions were pretext for unlawful discrimination.
Hostile Work Environment
Finally, viewing claims 3, 4, 5, 7, and 8 as a single ongoing harassment
claim, the Commission finds that Complainant has not established that
the Agencyâs actions were motivated by discriminatory animus. Rather,
it is apparent that the friction between the Manager and Complainant has
its roots in the backlog of work at the South Jersey DO, without regard
to the circumstances engendering the backlog. Further, even assuming
the veracity of Complainantâs account of events, we nonetheless do not
find that the Managerâs alleged actions were sufficiently severe or
pervasive to create a hostile work environment. In so finding, we note
that EEO regulations are not a general civility code or a requirement
that the workplace be free of offensive or unpleasant behavior.
Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998).
Consequently, we find that Complainant failed to prove that she was
subjected to unlawful harassment.
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 order for the reasons set forth in this 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 (Nov. 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
August 10, 2011
Date
1 Guillain-Barré Syndrome causes progressive muscle weakness and
paralysis (the complete inability to use a particular muscle or muscle
group), which develops over days or up to four weeks, and lasts several
weeks or months. Gale Encyclopedia of Medicine (3rd ed. 2008).
2 The KSAâs for the position were: 1. knowledge of statutes,
regulations, case law, and administrative procedures pertaining to EEO
complaints and disciplinary appeals handled by the MSPB; 2. knowledge of
ADR techniques used to monitor and evaluate contract ADR providers; 3.
ability to communicate orally with internal and external personnel at
all organizational levels sufficient to exchange information, provide
guidance to employees and managers on SEO issues, interact with contract
ADR providers, and process discrimination complaints; 4. ability to
communicate in writing sufficient to prepare general correspondence,
reports, and action plans, write contract ADR provider evaluations,
and thoroughly document facts and issues presented during counseling
and complaint processes; 5. ability to integrate and analyze information
during counseling and complaint processing in order to resolve disputes,
including information such as that gathered from employees and applicants;
and 6. ability to schedule and coordinate internal and external parties
sufficient to ensure timely complaint processing and activities.
Exhibit C, p. 12.
3 The rules laid down by the U.S. Supreme Court in McDonnell Douglas
Corp. in proving a Title VII claim are also applicable in proving an age
discrimination claim. Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979);
Kentroh v. Frontier Airlines. Inc., 585 F.2d 96 (10th Cir. 1978); Cova
v. Coca-Cola Bottling Co., 574 F.2d 958 (8th Cir. 1978).
------------------------------------------------------------
------------------------------------------------------------
01-2008-0617
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"477 U.S. 317",
"846 F.2d 103",
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370 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/05980746.txt | 05980746.txt | TXT | text/plain | 54,889 | Alton W. Bennett v. Department of the Navy 05980746 September 19, 2000 . Alton W. Bennett, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency. | September 19, 2000 | Appeal Number: 01962752
Background:
Complainant alleges that, in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. § 2000e et seq. and Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq., he was
discriminated against based on his national origin (one-quarter Native
American)<2>, disability (30% veteran's entitlement) and retaliation
for prior EEO activity. The specific incidents (SI) complainant sets
forth in support of his claim of discrimination are: (a) he received
allegedly unfair performance appraisals in August 1988 and August 1989;
(b) he was reprimanded for not contesting another employee's workers
compensation claim; (c) an agency attorney (the Attorney) allegedly made
intimidating and coercive statements to him in April 1989; (d) he was
not selected for promotion to the position of Supervisory Electronics
Engineer, GM-14; (e) he received a letter from the Deputy EEO Officer
(DEEOO) which he contended was threatening and wrongfully remanded
his amendments to an EEO complaint back for informal counseling; (f)
management officials allegedly conspired to willfully destroy merit
promotion records (Agency Vacancy No. N-44-87) because the records were
pertinent to one of his EEO complaints; (g) an EEO Counselor allegedly
conspired with management EEO officials and improperly conducted an
informal fact finding on one of his EEO complaints; (h) the DEEOO
issued a memorandum which he contended wrongfully remanded one of
his EEO complaints for further informal counseling; (i) his first line
supervisor allegedly verbally threatened him in August 1989 with a legal
suit for statements he made in amendments to one of his EEO complaints;
(j) he learned in August 1989 that his supervisor was given access to
amendments to an EEO complaint, which violated his right to privacy; (k)
his first line supervisor informed him in August 1989 that the supervisor
had been directed to investigate an allegation made by the EEO Complaints
Manager that he had made her fear for her life; (l) he learned in October
1989 that a coworker had received an Outstanding performance rating and
a substantial performance pay raise award, while complainant had not;
(m) his first line supervisor allegedly punished him with an oral
admonishment in November 1989, for making libelous statements in one
of his formal EEO complaints; and (n) the Attorney allegedly passed a
sexually coercive note to complainant's attorney.
In November 1983, complainant was selected for promotion to the position
of Supervisory Electronics Engineer, GM-13. Complainant's supervisor, the
Department Director for Code 02 (DD-1) rated complainant's performance as
Superior in 1984, and as Successful in 1985. In 1986, DD-1 became
the Department Director of another code and, in 1986, complainant's
performance was rated as Marginal by his new supervisor (DD-2).
In early 1987, complainant was reassigned to another code and again came
under the supervision of DD-1.
In June 1987, an employee was placed in complainant's division and
under his supervision. This employee (E-1) had filed various claims of
retaliation against the agency with the Office of Special Counsel and the
Merit Systems Protection Board (MSPB) based on his whistleblower status
and had recently prevailed on a claim filed with the MSPB.<3> In July
1987, complainant requested that E-1 be reassigned outside his division.
Complainant also made the first of numerous requests to receive legal
representation in matters relating to E-1 and expressed concerns about
his personal legal liability.
In July 1987, complainant wrote a memorandum entitled Useful Work Vice
Waste, in which he offered various options to effect E-1's reassignment
outside complainant's division.<4> Agency officials objected to
complainant's actions in providing E-1 with a copy of this memorandum
before giving it to his superiors and contended that this action precluded
management from working as a team to address the issue. In addition,
the language in the memorandum was viewed as accepting E-1's allegations,
without any attempt to first determine the accuracy of the allegations.
As noted below, agency officials also contended that they experienced
difficulty in obtaining an affidavit from complainant in connection with
one of E-1's complaints.
Complainant's performance was rated as Fully Successful in 1987
and 1988. In explaining his ratings of complainant under the various
performance elements, DD-1 testified that he acknowledged that
supervising E-1 presented certain unique challenges and that he had
taken this into account. However, he felt that complainant devoted an
inordinate amount of time to matters relating to E-1 to the detriment
of the other twenty or so employees under complainant's supervision.
DD-1 noted that a similarly situated supervisor (SEE-1, who was outside
complainant's protected classes) also had a difficult personnel problem
but was better able to appropriately allocate his time.
Meanwhile, in June 1988, complainant was responsible for completing
the supervisor's section of a claim filed with the Office of Workers
Compensation (OWCP) by E-1. Complainant and DD-1 disagreed with
respect to which box on the claim should be checked, the one labeled
traumatic injury or the one labeled occupational illness. DD-1
advised complainant to seek advice from the agency office responsible
for such matters. (Ultimately, E-1's claim was accepted by OWCP as an
occupational illness.) This scenario resulted in complainant's contention
in SI (b) that he was reprimanded for not contesting E-1's OWCP claim.
In early 1988, complainant and eight others applied for a position of
Supervisory Electronic Engineer, GM-14. (See SI (d)). Two candidates
were rated as Highly Qualified by the Selection Advisory Panel and
two others, including complainant, were rated as Qualified. After
interviewing these four candidates, the panel unanimously recommended one
of the candidates who had been rated as Highly Qualified. Complainant
was informed of his non-selection for this position in 1989. At his
hearing, complainant extensively questioned the panelists regarding his
rating and their recommendation of the other candidate.
In SI (f), complainant alleges that management officials conspired to
willfully destroy merit promotion records in connection with another
selection (Agency Vacancy Announcement No. N-44-87) because the records
were pertinent to one of his EEO complaints. The agency asserted that
complainant had not sought EEO counseling with respect to that vacancy
and that the records were later routinely purged in the normal course
of business.
Complainant's mid-year performance evaluation was held in February
1989. It stated that complainant had improved in the element Personnel
Management but noted under the element Communications that while he
had good communication downward, his communication with his peers
and supervisors needed improvement. Complainant requested guidance
on improving his performance, and DD-1 suggested in a hand written
memorandum that complainant could create the perception that [he]
trust[s] the motivation of management, because complainant's performance
during a meeting with the Commanding Officer (CO) gave the impression
that complainant may be a hostile witness' in any forthcoming [E-1]
hearings. DD-1 also suggested that complainant participate in some
extracurricular activities, such as the EEO Committee or the Recreation
and Welfare Committee.
During the hearing on complainant's instant complaint, DD-1 testified that
he did not use the term hostile witness in any legal sense; rather, he
was referring to the difficulty agency officials had in trying to obtain
an affidavit from complainant in connection with one of E-1's complaints.
(Further discussed in SI (c) below.) DD-1 maintained that the agency
was merely attempting to have complainant provide truthful information
in order to create an accurate record pertaining to E-1.
Regarding SI (c) (that the Attorney made intimidating and coercive
statements to him in April 1989), on April 24, 1989, the Attorney
contacted complainant to confirm a meeting scheduled for the purpose of
preparing him to testify at an upcoming EEO hearing on a complaint filed
by E-1. Complainant refused to meet with the Attorney, who responded
with words to the effect that he was shooting [himself] in the foot by
refusing to allow [her] to prepare [him] for the hearing. An agency
official thereafter issued a written order directing complainant to
cooperate with the Attorney. Complainant thereafter met with the
Attorney as ordered, and was not disciplined for his initial refusal.
(While complainant also made references to a conversation with the
Attorney on April 27, 1989, the EEOC Administrative Judge (AJ) found
insufficient evidence to establish what, if any, statements the Attorney
allegedly made on that date.)
Complainant's performance was rated as Exceeds Fully Successful in
1989, and the rating reflected improved performance in five elements,
including Communications. Complainant received a merit salary increase
of $686.00, as well as three $100.00 and one $75.00 Special Act awards.
Complainant later learned that SEE-1 received a performance rating
of Outstanding, and a merit performance award of $2,500.00. At the
hearing, DD-1 testified as to his reasons for rating SEE-1's performance
higher than complainant's, including his belief that SEE-1's programs
were more complex and technically diverse. Complainant contended that
SEE-1's performance should not have been more highly rated, arguing that
certain negative Program Management Status Reports should have been
considered to SEE-1's detriment. However, DD-1 testified that he did
not use these reports to evaluate an employee's performance, in part
because program status was affected by factors outside the employee's
control (such as funding) and in part because he feared that problems
would not be fully and accurately reported if the reports were used in
performance evaluations. DD-1 testified as to his reasons for rating
SEE-1 higher in the various performance elements, including Personnel
Management and Communications.
Complainant maintained that his performance ratings, and other agency
actions, constituted retaliation against him for not taking action
against, or for otherwise protecting, E-1. Complainant argued that he
was viewed as not playing ball and not being a team player. Agency
officials testified, and complainant conceded, that complainant was never
asked or directed to take any action against E-1. Agency officials
testified that they merely wished for E-1 to become a productive
employee who performed his work and recognized that the agency had to
balance accomplishment of its mission against E-1's right to pursue his
complaints. Complainant was advised to allow E-1 a reasonable amount
of time in connection with his complaints but not to permit E-1 to spend
a majority of his working hours on his complaints.
With respect to SI (e) (complainant received a letter from the DEEOO which
he contended was threatening and wrongfully remanded his amendments to
an EEO complaint back for informal counseling) and SI (h) (the DEEOO
issued a memorandum which complainant contended wrongfully remanded
one of his EEO complaints for further informal counseling), the record
reflects that complainant filed his formal EEO complaint directly with
the Secretary of the Navy, without providing a copy to the applicable
EEO Office. Complainant later began submitting a series of amendments
to his complaint, despite being advised by various agency officials on
numerous occasions (both verbally and in writing) that he could not add
new issues in this manner and must first seek EEO Counseling. On August
11, 1989, the agency rejected portions of the complaint. On appeal,
this Commission advised complainant that the agency properly sent
[various] claims ... back to the informal counseling stage because
they lack the necessary specificity to determine their acceptability
[and properly sent back other contentions because] the record does not
indicate that [they] were counseled. Complainant was advised that
each claim of discrimination must first be counseled before a formal
complaint on that claim may be filed [and] the agency properly refused to
amend complainant's formal complaint by adding claims that had not been
discussed with the EEO Counselor.<5> As noted by the AJ even after
receipt of this decision, complainant continued to submit amendments
to his complaint, eventually submitting some fourteen amendments.
In SI (i), complainant contended that his first line supervisor allegedly
verbally threatened him in August 1989 with a legal suit for statements he
made in amendments to one of his EEO complaints and in SI (j), complainant
stated that he learned in August 1989 that his supervisor was given access
to amendments to an EEO complaint, which violated his right to privacy.
The record reflects that, in the course of responding to complainant's
contentions, various persons became aware of them. Furthermore, because
complainant submitted his amendments' directly to the Secretary of the
Navy, as well as on occasion to the CO or other officials, more than the
usual number of people handled the material in the course of transmitting
it to the applicable EEO Office. Various persons expressed the belief
that they had been libeled by complainant's phrasing of his assertions and
inquired whether they could pursue legal action against complainant.<6>
An agency Executive Director suggested that DD-1 review the material
and consider counseling complainant regarding the wisdom of appearing
to make malicious statements ... with the intent to harm or destroy
the reputation, authority, or official standing of various persons.
DD-1 reviewed the material and consulted with the Attorney. Thereafter,
DD-1 met with complainant and advised him to state his assertions and his
objections to various actions without personally attacking the individuals
who took the actions. DD-1 testified that he took this step in part
because of complainant's frequent expressions of concern regarding his
personal liability in connection with E-1's complaints. DD-1 denied
that his discussion with complainant constituted an admonishment and
denied any intent to dissuade complainant from filing any complaints,
maintaining that he wished only to help [complainant] avoid [possible]
legal liability. Hearing Transcript (HT) at 1374.
In SI (k), complainant alleges discrimination when DD-1 informed him in
August 1989 that he had been directed to investigate a claim made by the
EEO Complaints Manager (through the DEEOO) that he had made her fear
for her life. The record reflects that complainant and the various
EEO personnel had poor interpersonal relations. During complainant's
initial meeting with the EEO Counselor, she viewed him as acting in a
hostile manner, inasmuch as he questioned her qualifications, neutrality,
maintenance of confidentiality, and knowledge of his reputation and
the reputation of E-1.<7> Complainant also was evasive about the
specifications of his complaint and again requested that an agency
attorney be appointed to represent him. As for SI (k), in August
1989, complainant went to the EEO Office to collect certain documents.
The EEO Complaints Manager asked him to sign a form acknowledging receipt
of the documents. The EEO Complaints Manager found complainant's
response and behavior frightening and asked him to leave the office,
but he refused. She informed the DEEOO of the incident, who in turn
informed the Executive Director. The Executive Director subsequently
instructed DD-1 to investigate the incident and, after the investigation,
complainant was issued a Letter of Reprimand for engaging in inappropriate
and disrespectful conduct.<8>
In SI (n), complainant contends that the Attorney allegedly passed a
sexually coercive note to complainant's attorney. The record reflects
that, in January 1991, complainant filed suit in the U.S. District Court
Southern District of California (the "District Court") (Case No. 90-0066-R
(CM)(February 19, 1991)). This suit included several of the specific
incidents challenged herein and complainant sued both the agency and
numerous supervisors and coworkers in the personal capacities, citing
various state and constitutional torts.<9> Shortly before this suit was
filed, the Attorney met with complainant's attorney in his office and
delivered various documents. Complainant asserts that the Attorney also
left a note stating: Hello Gorgeous! Wanna get romantic? I'll bring
the wine, you light the fire. In essence, complainant maintains that
the Attorney offered sexual favors in order to coerce his attorney to
persuade him not to file the civil suit. Complainant initially expressed
uncertainty as to whether the note was written by the Attorney, the DEEOO
or the EEO Counselor and requested that the AJ obtain a handwriting sample
to identify the writer; nonetheless, complainant had already sent copies
of the note to the Secretary of the Navy, the General Counsel for the
Navy and other federal agencies, along with accusations that the Attorney
had attempted to sexually coerce his attorney. All of the persons
suspected by complainant denied writing the note and complainant's
attorney did not know who wrote the note, expressing his opinion that
the matter was a waste of time and not worth discussing.
Following the dismissal of complainant's civil suit and the various
appeals to the Commission noted above, complainant's instant complaint
was investigated by the agency and the matter was heard before an AJ
over a 10-day period on various dates between July and September 1994.
After the hearing, complainant submitted a 107-page closing argument.
On October 25, 1995, the AJ issued a 59-page Recommended Decision (RD)
finding that complainant failed to establish discrimination or reprisal.
As a preliminary matter, the RD noted that in July 1994, the agency
filed a motion for summary judgment on SI (b), (c), (e), (f), (k) and
(l). After reviewing the agency's brief and the Report of Investigation
(complainant did not file a brief in opposition to the motion), and
drawing all inferences in the light most favorable to complainant, the
AJ found that there were no issues of material fact with respect to SI
(b), (c), (e), (f) and (k) inasmuch as complainant failed to establish a
prima facie case of discrimination or reprisal. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973); Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass.), aff'd, 545
F.2d 222 (1st Cir. 1976). Specifically, the AJ was not persuaded that
complainant established that the disagreement complainant had with DD-1
regarding how to complete the supervisor's section of the OWCP form was
tantamount to a reprimand for not contesting E-1's OWCP claim (SI (b)).
The AJ found that complainant failed to establish that any adverse action
was in fact taken against him when DD-1 merely informed him that he
thought [complainant] was checking the wrong box and ... should contact
the agency office responsible for such matters. Accordingly, the AJ
found that complainant failed to establish that he was aggrieved within
the meaning of the Commission's Regulations. 64 Fed. Reg. 37,644, 37,656
(1999)(to be codified and hereinafter referred to as EEOC Regulation
29 C.F.R. § 1614.107(a)(1)). Similarly, the AJ was not persuaded that
the statements made by the Attorney in April 1989 were intimidating and
coercive (SI (c)) or were sufficiently severe as to render complainant
aggrieved.
The AJ noted that this Commission had previously ruled that complainant
could not amend his EEO complaint to add new claims without first seeking
EEO counseling. See supra EEOC Appeal No. 01893799. Accordingly,
the AJ granted summary judgment with respect to SI (e) (complainant
received a letter from the DEEOO which he contended was threatening and
wrongfully remanded his amendments to an EEO complaint back for informal
counseling).<10>
As for SI (f) (management officials allegedly conspired to willfully
destroy merit promotion records (Agency Vacancy No. N-44-87) because
the records were pertinent to one of his EEO complaints), the AJ noted
that complainant had never timely sought EEO counseling with respect to
that selection. The AJ was not persuaded that complainant was aggrieved
by the agency's routine purging of these documents after expiration of
the applicable time period for retention. 29 C.F.R. § 1614.107(a)(1);
64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter referred
to as EEOC Regulation 29 C.F.R. § 1614.107(a)(2)).
Regarding SI (k) (DD-1 informed him in August 1989 that he had been
directed to investigate a claim made by the EEO Complaints Manager
that he had made her fear for her life), the AJ found that complainant
became agitated and yelled at the EEO Complaints Manager, and that
she was frightened by his raised voice, angry facial expressions, red
facial coloring and protruding neck veins. The AJ noted that after
DD-1's investigation, complainant was issued a Letter of Reprimand for
inappropriate and disrespectful conduct toward the EEO Complaints Manager.
The AJ determined that there was no evidence on record of any dispute
of a material fact regarding this incident and that complainant was not
subjected to discrimination or reprisal when the agency investigated
the concerns raised by the EEO Complaints Manager.
Turning to the merits of complainant's remaining contentions, the AJ first
ruled that complainant failed to establish that he was a individual with a
disability as defined in the Commission's Regulations. The AJ found that
complainant could not rest his claim of disability discrimination solely
on the assertion that his personnel files indicated that the Department
of Veterans Affairs had granted him a 30% disability rating entitlement.
Inasmuch as there was no evidence in the record regarding complainant's
alleged disability and no evidence that the agency regarded him as
disabled, the AJ found that he failed to meet his burden of establishing
that he was a qualified individual with a disability.<11>
Insofar as complainant contended that his 1988 performance appraisal
constituted retaliation for his support of E-1, the AJ found several
obstacles to [this] argument. First, while E-1 was known to have filed
claims of retaliation against the agency based on his whistleblower
status at the Office of Special Counsel and the MSPB, the AJ found
that there was no showing that E-1 had filed EEO complaints or raised
retaliation for activities protected by Title VII prior to 1988. Further,
while E-1 filed an EEO complaint in 1988, he filed it directly with the
Secretary of the Navy, and there was no evidence that the applicable
agency EEO office or officials became involved prior to 1989. The AJ
further found no evidence that DD-1 or the Executive Director were aware
of any activity undertaken by complainant on behalf of E-1 prior to
issuance of the performance appraisal in August 1988. The AJ held
that merely supervising an EEO claimant, or potential claimant, is
not a protected activity. Accordingly, the AJ was not persuaded that
complainant established a prima facie case of reprisal. See Hochstadt,
supra.
However, even assuming that complainant could establish a prima facie
case of reprisal with respect to his 1988 performance appraisal, the AJ
found that he failed to establish that the legitimate, nondiscriminatory
reasons articulated for his 1988 performance appraisal ratings were a
pretext for reprisal, noting that the 1988 appraisal was consistent with
DD-1's earlier appraisals of complainant's performance. Id.
With respect to this incident and all of the remaining incidents cited
by complainant, the AJ questioned whether he could establish a prima
facie case of discrimination based on his national origin, inasmuch as
complainant failed to establish that the relevant officials were aware
that he was one-quarter Native American. Assuming that complainant
could establish a prima facie case of discrimination based on his
national origin, the AJ again found no evidence that the legitimate,
nondiscriminatory reasons articulated for the appraisal were a pretext
for national origin discrimination. See McDonnell Douglas, supra.
While the AJ found that complainant could establish a prima facie case of
retaliation with respect to his 1989 performance appraisal, the AJ again
found that he failed to establish that the legitimate, nondiscriminatory
reasons articulated for his performance appraisal ratings were pretextual.
The AJ noted that complainant's appraisal ratings had in fact improved
from a rating of Marginal in 1986 (prior to E-1's placement in his
division or his own initial EEO activity) to Exceeds Fully Successful
in 1989, which was the highest rating ever achieved by complainant.
The AJ was unpersuaded that DD-1's hand written memorandum constituted
direct evidence of a retaliatory animus.<12> Instead, the AJ found
that complainant had in fact repeatedly shown hostility to management's
necessary attempts to gather factual information on his supervision of
[E-1 because he was] extremely fearful of being sued by [E-1] although
complainant was under an obligation as a supervisor to provide factual
information to any investigation of E-1's various claims or charges.
Again assuming that complainant could establish a prima facie case of
discrimination based on his national origin, the AJ found no evidence of
pretext, noting that the agency had provided a detailed explanation of the
reasons for SEE-1's higher ratings and resulting awards. Accordingly,
the AJ also found no discrimination or reprisal with respect to SI (l)
(SEE-1 received an Outstanding performance rating and a substantial
performance pay raise award, while complainant did not).
As for SI (d) (he was not selected for promotion to the position of
Supervisory Electronics Engineer, GM-14), the AJ found that one of
the panelists had learned of complainant's EEO activity at the time
of his interview, and that the Executive Director had learned of his
EEO activity at the time that he accepted the panel's recommendation
of another candidate. Accordingly, the AJ found that complainant
established a prima facie case of reprisal. The AJ found that, through
the testimony of various panelists, the agency had articulated legitimate,
nondiscriminatory reasons for its selection decision. As evidence of
pretext, complainant offered the testimony of a Subject Matter Expert,
who stated that he would have scored complainant two points higher
on one element. Noting that all of the applicants were scored in a
relatively short time under the same process, the AJ opined that had
all the applicants ... been re-scored at the Subject Matter Expert's
leisure, it is possible that more of them would get higher scores, as
he would have had more time to discover additional information. In
any event, an upward adjustment of two points in complainant's score
would not have made a difference inasmuch as he was included among
those candidates recommended for an interview. The AJ found that the
agency's Subject Matter Expert credibly testified as to the propriety
of the scores assigned to the candidates, and was not persuaded by
complainant's assertion (based on his scoring of his own application
and withering scoring of the selectee) that his scoring should have
been so high that no interviews would have been conducted. The AJ found
that complainant failed to establish that his non-selection constituted
reprisal or discrimination. See Bauer v. Bailar, 647 F.2d 1037, 1048
(10th Cir. 1981).
Complainant argued that the criticism he had received regarding his
Useful Work Vice Waste memorandum constituted evidence of reprisal.
However, the AJ found that the obvious thrust of the memorandum was that
[complainant] did not want [E-1] assigned to him and that, while it
may have been acceptable for complainant to submit a memorandum to this
effect to his supervisors, it was a matter of legitimate concern to his
supervisors that [complainant] first shared this memo with [E-1]. The AJ
found that agency officials were legitimately concerned by this action,
citing cases upholding management's need to function with one voice'
and demand loyalty in situations involving management's relations with
non-management employees.<13> The AJ found that agency management,
in a proper exercise of its discretion, assigned E-1 to complainant's
division and that complainant feared supervising E-1 out of concern for
his personal legal liability.
The AJ determined that complainant misinterpreted or misrepresented
the advice and direction given to him in matters concerning E-1 as
reprimands and threats. Although summary judgment had been granted on
these points, the AJ discussed SI (b) (DD-1's advice regarding how to
complete the supervisor's section of the OWCP form was tantamount to a
reprimand for not contesting E-1's OWCP claim) and SI (c) (statements
made by the Attorney in April 1989 were intimidating and coercive)
as examples of complainant's misinterpretation or misrepresentation
of management's actions. The AJ held that the Attorney acted properly
in seeking a meeting with complainant, in his role as E-1's supervisor,
prior to E-1's upcoming EEO hearing. Thus, the AJ found that the Attorney
gave complainant legitimate advice when she stated that he was shooting
himself in the foot by refusing to meet with her, in the sense that he
was engaging in a self-defeating effort as she could (and did) merely
request the Captain to order him to meet with her. Consequently, the
AJ was not persuaded by complainant's characterization of the Attorney's
actions or comments as retaliatory, intimidating or coercive. Finally,
the AJ was not persuaded that DD-1's memorandum or the Attorney's
statements constituted direct evidence of discrimination or reprisal.
While E-1 testified on complainant's behalf that higher-level supervisors
stated that complainant stood in the way of their desire to terminate
E-1, the AJ found it clear that E-1 had a strong bias against the
agency and testified in an evasive and theatrical manner to the extent
that the AJ declined to credit any of his testimony.
Noting that the Commission had issued decisions upholding the agency's
instructions to complainant that he must seek EEO counseling to raise
new claims of discrimination, the AJ found that complainant failed to
establish a prima facie case of discrimination or retaliation regarding SI
(h) (the DEEOO issued a memorandum which complainant contended wrongfully
remanded one of his EEO complaints for further informal counseling).
As for SI (i) (DD-1 allegedly verbally threatened him in August 1989
with a legal suit for statements he made in amendments to one of his
EEO complaints), the AJ was again not persuaded that complainant was
threatened or admonished, particularly in light of a number of concerns
raised by [complainant's] behavior in filing his EEO complaints including
his repeated filings of amendments despite the Commission's directions
to him, his refusal to cooperate with the EEO office in all matters
concerning counseling (including making appointments and allowing attempts
at informal resolution), and the overheated and venomous rhetoric of
the language used by complainant to state his contentions. The AJ noted
that while it is plainly a delicate matter to separate out protected from
the non-protected conduct, a complainant's deportment [is not insulated]
from adverse scrutiny ... insofar as it went beyond the pale of reasonable
opposition activity. Hochstadt, supra at 229. The AJ found that DD-1
did not attempt to restrain complainant from filing complaints and noted
that the agency processed the complaints even after complainant persisted
in filing amendments and was uncooperative with the EEO officials.
The AJ ruled that DD-1's statements did not constitute direct evidence
of reprisal, finding that DD-1 merely advised [complainant] to tone down
... his rhetoric and did not cross[] the line in trying to separate out
the protected from the unprotected activity. Insofar as complainant
claimed that the EEO Office and various officials breached his right
to confidentiality, the AJ found that his conduct caused the breaches.
Consequently, the AJ found that complainant failed to establish a prima
facie case of discrimination or reprisal.
With respect to SI (n) (the Attorney allegedly passed a sexually coercive
note to complainant's attorney), the AJ found that complainant failed
to establish any credible nexus between the agency and the note since
there was no evidence that the note originated at the agency and not
from within his attorney's own office.
As a final matter, the AJ noted that, based on their demeanor as well as
the internal consistency of their own testimony and other documentary
support of such testimony, he found the agency's witnesses credible.
In contrast, the AJ found that complainant's personal unprovoked attacks
on various participants in the hearing, ... exaggerations, and distortions
ultimately detracted from [his] credibility and the value which otherwise
might have attached to his many uncorroborated statements.
In its FAD, the agency adopted the RD. On February 23, 1996, complainant
timely appealed. In his 276-page appeal brief, complainant primarily
presented the same contentions set forth in the closing arguments
submitted to the AJ. Complainant also asserted that the AJ: (1) held
him to standards exceeding those which required for pro se parties
under the Federal Rules of Civil Procedure; (2) essentially copied the
agency's closing statement into the RD; (3) made factual misstatements;
(4) failed to follow the District Court's order; (5) erred in granting
summary judgment; (6) denied him a fair hearing; (7) erred in not finding
E-1's testimony worthy of weight and credence; (8) erred in various
rulings with respect to discovery, the introduction of evidence and
the presentation of witnesses; (9) erred in finding that the agency's
witnesses were credible; (10) erred in failing to hold that complainant
produced direct evidence of discrimination (including DD-1's memorandum
(see n. 10 supra)); and (11) misinterpreted and misapplied the law.
Apparently interpreting the District Court's Order as requiring him to
file an appeal with this Commission, complainant also protested being
compelled to exhaust the administrative process.
In its decision on the appeal, the Commission stated that the agency
had failed to submit a complete record, including copies of the formal
complaints, EEO Counselors' reports, report of investigation, hearing
transcripts and exhibits, even after being requested to do so. The
Commission further stated that, "in his notice of appeal, the complainant
states that he did not receive copies of the hearing transcripts and is
therefore unable to prepare and file a brief in support of his appeal."
Because, absent the complaint file, the Commission was unable to
adjudicate the appeal, the Commission vacated the FAD and ordered the
agency to prepare and submit a complete complaint file, including an
index, to provide complainant with a copy of the index and exhibits,
and to then issue a new FAD.
Both complainant and the agency filed a request to reopen the previous
Commission decision. In his request to reopen, complainant protests that
the prior decision "turns the clock back" more than two years, provides
the agency with the opportunity to create a new case file and places an
undue burden on him to respond to yet another FAD. Complainant notes that
nowhere in his appeal did he state that he had not received a copy of
the hearing transcripts and asserts that the prior decision erroneously
implies that he had not submitted a brief on appeal. Complainant argues
that his 276-page appeal brief, together with its 288 pages of exhibits,
contain overwhelming argument and evidence, including direct evidence,
in his favor.
In its request to reopen, the agency asserts that any failure to produce
the record was inadvertent. The agency submits a copy of a cover letter
to the Commission, dated March 25, 1996, which states that "enclosed [is]
the discrimination complaint case record of [complainant] and [the agency]
certif[ies] that it is complete," together with a certified return receipt
card evidencing the Commission's receipt of the transmittal.<14> The
agency states that "a recent search of [its] files managed to locate
a portion of the records, the hearing transcript and exhibits from
the hearing." The agency notes that, inasmuch as complainant will
clearly appeal a new FAD (which presumably would again adopt the RD),
the prior decision only serves to prolong the processing time and the
agency joins in complainant's arguments for issuance of a Commission
Legal Analysis:
EEOC regulations provide that
the Commissioners may, in their discretion, reconsider any previous
Commission decision. 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified
and hereinafter referred to as EEOC Regulation 29 C.F.R. § 1614.405(b)).
The party requesting reconsideration must submit written argument
or evidence which tends to establish one or more of the following
two criteria: the appellate decision involved a clearly erroneous
interpretation of material fact or law; or the decision will have
a substantial impact on the policies, practices or operations of the
agency. Id. For the reasons set forth herein, the requests are GRANTED.
ISSUE PRESENTED
Whether the previous decision properly vacated the final agency decision
(FAD) and remanded this matter to the agency for issuance of a new FAD
and, if not, whether complainant was subjected to discrimination as
contended below.
BACKGROUND
Complainant alleges that, in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. § 2000e et seq. and Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq., he was
discriminated against based on his national origin (one-quarter Native
American)<2>, disability (30% veteran's entitlement) and retaliation
for prior EEO activity. The specific incidents (SI) complainant sets
forth in support of his claim of discrimination are: (a) he received
allegedly unfair performance appraisals in August 1988 and August 1989;
(b) he was reprimanded for not contesting another employee's workers
compensation claim; (c) an agency attorney (the Attorney) allegedly made
intimidating and coercive statements to him in April 1989; (d) he was
not selected for promotion to the position of Supervisory Electronics
Engineer, GM-14; (e) he received a letter from the Deputy EEO Officer
(DEEOO) which he contended was threatening and wrongfully remanded
his amendments to an EEO complaint back for informal counseling; (f)
management officials allegedly conspired to willfully destroy merit
promotion records (Agency Vacancy No. N-44-87) because the records were
pertinent to one of his EEO complaints; (g) an EEO Counselor allegedly
conspired with management EEO officials and improperly conducted an
informal fact finding on one of his EEO complaints; (h) the DEEOO
issued a memorandum which he contended wrongfully remanded one of
his EEO complaints for further informal counseling; (i) his first line
supervisor allegedly verbally threatened him in August 1989 with a legal
suit for statements he made in amendments to one of his EEO complaints;
(j) he learned in August 1989 that his supervisor was given access to
amendments to an EEO complaint, which violated his right to privacy; (k)
his first line supervisor informed him in August 1989 that the supervisor
had been directed to investigate an allegation made by the EEO Complaints
Manager that he had made her fear for her life; (l) he learned in October
1989 that a coworker had received an Outstanding performance rating and
a substantial performance pay raise award, while complainant had not;
(m) his first line supervisor allegedly punished him with an oral
admonishment in November 1989, for making libelous statements in one
of his formal EEO complaints; and (n) the Attorney allegedly passed a
sexually coercive note to complainant's attorney.
In November 1983, complainant was selected for promotion to the position
of Supervisory Electronics Engineer, GM-13. Complainant's supervisor, the
Department Director for Code 02 (DD-1) rated complainant's performance as
Superior in 1984, and as Successful in 1985. In 1986, DD-1 became
the Department Director of another code and, in 1986, complainant's
performance was rated as Marginal by his new supervisor (DD-2).
In early 1987, complainant was reassigned to another code and again came
under the supervision of DD-1.
In June 1987, an employee was placed in complainant's division and
under his supervision. This employee (E-1) had filed various claims of
retaliation against the agency with the Office of Special Counsel and the
Merit Systems Protection Board (MSPB) based on his whistleblower status
and had recently prevailed on a claim filed with the MSPB.<3> In July
1987, complainant requested that E-1 be reassigned outside his division.
Complainant also made the first of numerous requests to receive legal
representation in matters relating to E-1 and expressed concerns about
his personal legal liability.
In July 1987, complainant wrote a memorandum entitled Useful Work Vice
Waste, in which he offered various options to effect E-1's reassignment
outside complainant's division.<4> Agency officials objected to
complainant's actions in providing E-1 with a copy of this memorandum
before giving it to his superiors and contended that this action precluded
management from working as a team to address the issue. In addition,
the language in the memorandum was viewed as accepting E-1's allegations,
without any attempt to first determine the accuracy of the allegations.
As noted below, agency officials also contended that they experienced
difficulty in obtaining an affidavit from complainant in connection with
one of E-1's complaints.
Complainant's performance was rated as Fully Successful in 1987
and 1988. In explaining his ratings of complainant under the various
performance elements, DD-1 testified that he acknowledged that
supervising E-1 presented certain unique challenges and that he had
taken this into account. However, he felt that complainant devoted an
inordinate amount of time to matters relating to E-1 to the detriment
of the other twenty or so employees under complainant's supervision.
DD-1 noted that a similarly situated supervisor (SEE-1, who was outside
complainant's protected classes) also had a difficult personnel problem
but was better able to appropriately allocate his time.
Meanwhile, in June 1988, complainant was responsible for completing
the supervisor's section of a claim filed with the Office of Workers
Compensation (OWCP) by E-1. Complainant and DD-1 disagreed with
respect to which box on the claim should be checked, the one labeled
traumatic injury or the one labeled occupational illness. DD-1
advised complainant to seek advice from the agency office responsible
for such matters. (Ultimately, E-1's claim was accepted by OWCP as an
occupational illness.) This scenario resulted in complainant's contention
in SI (b) that he was reprimanded for not contesting E-1's OWCP claim.
In early 1988, complainant and eight others applied for a position of
Supervisory Electronic Engineer, GM-14. (See SI (d)). Two candidates
were rated as Highly Qualified by the Selection Advisory Panel and
two others, including complainant, were rated as Qualified. After
interviewing these four candidates, the panel unanimously recommended one
of the candidates who had been rated as Highly Qualified. Complainant
was informed of his non-selection for this position in 1989. At his
hearing, complainant extensively questioned the panelists regarding his
rating and their recommendation of the other candidate.
In SI (f), complainant alleges that management officials conspired to
willfully destroy merit promotion records in connection with another
selection (Agency Vacancy Announcement No. N-44-87) because the records
were pertinent to one of his EEO complaints. The agency asserted that
complainant had not sought EEO counseling with respect to that vacancy
and that the records were later routinely purged in the normal course
of business.
Complainant's mid-year performance evaluation was held in February
1989. It stated that complainant had improved in the element Personnel
Management but noted under the element Communications that while he
had good communication downward, his communication with his peers
and supervisors needed improvement. Complainant requested guidance
on improving his performance, and DD-1 suggested in a hand written
memorandum that complainant could create the perception that [he]
trust[s] the motivation of management, because complainant's performance
during a meeting with the Commanding Officer (CO) gave the impression
that complainant may be a hostile witness' in any forthcoming [E-1]
hearings. DD-1 also suggested that complainant participate in some
extracurricular activities, such as the EEO Committee or the Recreation
and Welfare Committee.
During the hearing on complainant's instant complaint, DD-1 testified that
he did not use the term hostile witness in any legal sense; rather, he
was referring to the difficulty agency officials had in trying to obtain
an affidavit from complainant in connection with one of E-1's complaints.
(Further discussed in SI (c) below.) DD-1 maintained that the agency
was merely attempting to have complainant provide truthful information
in order to create an accurate record pertaining to E-1.
Regarding SI (c) (that the Attorney made intimidating and coercive
statements to him in April 1989), on April 24, 1989, the Attorney
contacted complainant to confirm a meeting scheduled for the purpose of
preparing him to testify at an upcoming EEO hearing on a complaint filed
by E-1. Complainant refused to meet with the Attorney, who responded
with words to the effect that he was shooting [himself] in the foot by
refusing to allow [her] to prepare [him] for the hearing. An agency
official thereafter issued a written order directing complainant to
cooperate with the Attorney. Complainant thereafter met with the
Attorney as ordered, and was not disciplined for his initial refusal.
(While complainant also made references to a conversation with the
Attorney on April 27, 1989, the EEOC Administrative Judge (AJ) found
insufficient evidence to establish what, if any, statements the Attorney
allegedly made on that date.)
Complainant's performance was rated as Exceeds Fully Successful in
1989, and the rating reflected improved performance in five elements,
including Communications. Complainant received a merit salary increase
of $686.00, as well as three $100.00 and one $75.00 Special Act awards.
Complainant later learned that SEE-1 received a performance rating
of Outstanding, and a merit performance award of $2,500.00. At the
hearing, DD-1 testified as to his reasons for rating SEE-1's performance
higher than complainant's, including his belief that SEE-1's programs
were more complex and technically diverse. Complainant contended that
SEE-1's performance should not have been more highly rated, arguing that
certain negative Program Management Status Reports should have been
considered to SEE-1's detriment. However, DD-1 testified that he did
not use these reports to evaluate an employee's performance, in part
because program status was affected by factors outside the employee's
control (such as funding) and in part because he feared that problems
would not be fully and accurately reported if the reports were used in
performance evaluations. DD-1 testified as to his reasons for rating
SEE-1 higher in the various performance elements, including Personnel
Management and Communications.
Complainant maintained that his performance ratings, and other agency
actions, constituted retaliation against him for not taking action
against, or for otherwise protecting, E-1. Complainant argued that he
was viewed as not playing ball and not being a team player. Agency
officials testified, and complainant conceded, that complainant was never
asked or directed to take any action against E-1. Agency officials
testified that they merely wished for E-1 to become a productive
employee who performed his work and recognized that the agency had to
balance accomplishment of its mission against E-1's right to pursue his
complaints. Complainant was advised to allow E-1 a reasonable amount
of time in connection with his complaints but not to permit E-1 to spend
a majority of his working hours on his complaints.
With respect to SI (e) (complainant received a letter from the DEEOO which
he contended was threatening and wrongfully remanded his amendments to
an EEO complaint back for informal counseling) and SI (h) (the DEEOO
issued a memorandum which complainant contended wrongfully remanded
one of his EEO complaints for further informal counseling), the record
reflects that complainant filed his formal EEO complaint directly with
the Secretary of the Navy, without providing a copy to the applicable
EEO Office. Complainant later began submitting a series of amendments
to his complaint, despite being advised by various agency officials on
numerous occasions (both verbally and in writing) that he could not add
new issues in this manner and must first seek EEO Counseling. On August
11, 1989, the agency rejected portions of the complaint. On appeal,
this Commission advised complainant that the agency properly sent
[various] claims ... back to the informal counseling stage because
they lack the necessary specificity to determine their acceptability
[and properly sent back other contentions because] the record does not
indicate that [they] were counseled. Complainant was advised that
each claim of discrimination must first be counseled before a formal
complaint on that claim may be filed [and] the agency properly refused to
amend complainant's formal complaint by adding claims that had not been
discussed with the EEO Counselor.<5> As noted by the AJ even after
receipt of this decision, complainant continued to submit amendments
to his complaint, eventually submitting some fourteen amendments.
In SI (i), complainant contended that his first line supervisor allegedly
verbally threatened him in August 1989 with a legal suit for statements he
made in amendments to one of his EEO complaints and in SI (j), complainant
stated that he learned in August 1989 that his supervisor was given access
to amendments to an EEO complaint, which violated his right to privacy.
The record reflects that, in the course of responding to complainant's
contentions, various persons became aware of them. Furthermore, because
complainant submitted his amendments' directly to the Secretary of the
Navy, as well as on occasion to the CO or other officials, more than the
usual number of people handled the material in the course of transmitting
it to the applicable EEO Office. Various persons expressed the belief
that they had been libeled by complainant's phrasing of his assertions and
inquired whether they could pursue legal action against complainant.<6>
An agency Executive Director suggested that DD-1 review the material
and consider counseling complainant regarding the wisdom of appearing
to make malicious statements ... with the intent to harm or destroy
the reputation, authority, or official standing of various persons.
DD-1 reviewed the material and consulted with the Attorney. Thereafter,
DD-1 met with complainant and advised him to state his assertions and his
objections to various actions without personally attacking the individuals
who took the actions. DD-1 testified that he took this step in part
because of complainant's frequent expressions of concern regarding his
personal liability in connection with E-1's complaints. DD-1 denied
that his discussion with complainant constituted an admonishment and
denied any intent to dissuade complainant from filing any complaints,
maintaining that he wished only to help [complainant] avoid [possible]
legal liability. Hearing Transcript (HT) at 1374.
In SI (k), complainant alleges discrimination when DD-1 informed him in
August 1989 that he had been directed to investigate a claim made by the
EEO Complaints Manager (through the DEEOO) that he had made her fear
for her life. The record reflects that complainant and the various
EEO personnel had poor interpersonal relations. During complainant's
initial meeting with the EEO Counselor, she viewed him as acting in a
hostile manner, inasmuch as he questioned her qualifications, neutrality,
maintenance of confidentiality, and knowledge of his reputation and
the reputation of E-1.<7> Complainant also was evasive about the
specifications of his complaint and again requested that an agency
attorney be appointed to represent him. As for SI (k), in August
1989, complainant went to the EEO Office to collect certain documents.
The EEO Complaints Manager asked him to sign a form acknowledging receipt
of the documents. The EEO Complaints Manager found complainant's
response and behavior frightening and asked him to leave the office,
but he refused. She informed the DEEOO of the incident, who in turn
informed the Executive Director. The Executive Director subsequently
instructed DD-1 to investigate the incident and, after the investigation,
complainant was issued a Letter of Reprimand for engaging in inappropriate
and disrespectful conduct.<8>
In SI (n), complainant contends that the Attorney allegedly passed a
sexually coercive note to complainant's attorney. The record reflects
that, in January 1991, complainant filed suit in the U.S. District Court
Southern District of California (the "District Court") (Case No. 90-0066-R
(CM)(February 19, 1991)). This suit included several of the specific
incidents challenged herein and complainant sued both the agency and
numerous supervisors and coworkers in the personal capacities, citing
various state and constitutional torts.<9> Shortly before this suit was
filed, the Attorney met with complainant's attorney in his office and
delivered various documents. Complainant asserts that the Attorney also
left a note stating: Hello Gorgeous! Wanna get romantic? I'll bring
the wine, you light the fire. In essence, complainant maintains that
the Attorney offered sexual favors in order to coerce his attorney to
persuade him not to file the civil suit. Complainant initially expressed
uncertainty as to whether the note was written by the Attorney, the DEEOO
or the EEO Counselor and requested that the AJ obtain a handwriting sample
to identify the writer; nonetheless, complainant had already sent copies
of the note to the Secretary of the Navy, the General Counsel for the
Navy and other federal agencies, along with accusations that the Attorney
had attempted to sexually coerce his attorney. All of the persons
suspected by complainant denied writing the note and complainant's
attorney did not know who wrote the note, expressing his opinion that
the matter was a waste of time and not worth discussing.
Following the dismissal of complainant's civil suit and the various
appeals to the Commission noted above, complainant's instant complaint
was investigated by the agency and the matter was heard before an AJ
over a 10-day period on various dates between July and September 1994.
After the hearing, complainant submitted a 107-page closing argument.
On October 25, 1995, the AJ issued a 59-page Recommended Decision (RD)
finding that complainant failed to establish discrimination or reprisal.
As a preliminary matter, the RD noted that in July 1994, the agency
filed a motion for summary judgment on SI (b), (c), (e), (f), (k) and
(l). After reviewing the agency's brief and the Report of Investigation
(complainant did not file a brief in opposition to the motion), and
drawing all inferences in the light most favorable to complainant, the
AJ found that there were no issues of material fact with respect to SI
(b), (c), (e), (f) and (k) inasmuch as complainant failed to establish a
prima facie case of discrimination or reprisal. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973); Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass.), aff'd, 545
F.2d 222 (1st Cir. 1976). Specifically, the AJ was not persuaded that
complainant established that the disagreement complainant had with DD-1
regarding how to complete the supervisor's section of the OWCP form was
tantamount to a reprimand for not contesting E-1's OWCP claim (SI (b)).
The AJ found that complainant failed to establish that any adverse action
was in fact taken against him when DD-1 merely informed him that he
thought [complainant] was checking the wrong box and ... should contact
the agency office responsible for such matters. | Alton W. Bennett v. Department of the Navy
05980746
September 19, 2000
.
Alton W. Bennett,
Complainant,
v.
Richard J. Danzig,
Secretary,
Department of the Navy,
Agency.
Request No. 05980746
Appeal No. 01962752
Agency Nos. DON 89-65584-001; 89-65584-007; 89-65584-008
Hearing Nos. 340-94-3224X; 340-94-3225X; 340-94-3226X
DECISION ON REQUESTS FOR RECONSIDERATION
INTRODUCTION
On May 14, 1998, Alton W. Bennett timely initiated a request to this
Commission to reconsider the decision in Alton W. Bennett v. John
H. Dalton, Secretary, Department of the Navy, EEOC Appeal No. 01962752
(April 16, 1998).<1> On June 11, 1998, the agency timely initiated its
request to reconsider that decision. EEOC regulations provide that
the Commissioners may, in their discretion, reconsider any previous
Commission decision. 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified
and hereinafter referred to as EEOC Regulation 29 C.F.R. § 1614.405(b)).
The party requesting reconsideration must submit written argument
or evidence which tends to establish one or more of the following
two criteria: the appellate decision involved a clearly erroneous
interpretation of material fact or law; or the decision will have
a substantial impact on the policies, practices or operations of the
agency. Id. For the reasons set forth herein, the requests are GRANTED.
ISSUE PRESENTED
Whether the previous decision properly vacated the final agency decision
(FAD) and remanded this matter to the agency for issuance of a new FAD
and, if not, whether complainant was subjected to discrimination as
contended below.
BACKGROUND
Complainant alleges that, in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. § 2000e et seq. and Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq., he was
discriminated against based on his national origin (one-quarter Native
American)<2>, disability (30% veteran's entitlement) and retaliation
for prior EEO activity. The specific incidents (SI) complainant sets
forth in support of his claim of discrimination are: (a) he received
allegedly unfair performance appraisals in August 1988 and August 1989;
(b) he was reprimanded for not contesting another employee's workers
compensation claim; (c) an agency attorney (the Attorney) allegedly made
intimidating and coercive statements to him in April 1989; (d) he was
not selected for promotion to the position of Supervisory Electronics
Engineer, GM-14; (e) he received a letter from the Deputy EEO Officer
(DEEOO) which he contended was threatening and wrongfully remanded
his amendments to an EEO complaint back for informal counseling; (f)
management officials allegedly conspired to willfully destroy merit
promotion records (Agency Vacancy No. N-44-87) because the records were
pertinent to one of his EEO complaints; (g) an EEO Counselor allegedly
conspired with management EEO officials and improperly conducted an
informal fact finding on one of his EEO complaints; (h) the DEEOO
issued a memorandum which he contended wrongfully remanded one of
his EEO complaints for further informal counseling; (i) his first line
supervisor allegedly verbally threatened him in August 1989 with a legal
suit for statements he made in amendments to one of his EEO complaints;
(j) he learned in August 1989 that his supervisor was given access to
amendments to an EEO complaint, which violated his right to privacy; (k)
his first line supervisor informed him in August 1989 that the supervisor
had been directed to investigate an allegation made by the EEO Complaints
Manager that he had made her fear for her life; (l) he learned in October
1989 that a coworker had received an Outstanding performance rating and
a substantial performance pay raise award, while complainant had not;
(m) his first line supervisor allegedly punished him with an oral
admonishment in November 1989, for making libelous statements in one
of his formal EEO complaints; and (n) the Attorney allegedly passed a
sexually coercive note to complainant's attorney.
In November 1983, complainant was selected for promotion to the position
of Supervisory Electronics Engineer, GM-13. Complainant's supervisor, the
Department Director for Code 02 (DD-1) rated complainant's performance as
Superior in 1984, and as Successful in 1985. In 1986, DD-1 became
the Department Director of another code and, in 1986, complainant's
performance was rated as Marginal by his new supervisor (DD-2).
In early 1987, complainant was reassigned to another code and again came
under the supervision of DD-1.
In June 1987, an employee was placed in complainant's division and
under his supervision. This employee (E-1) had filed various claims of
retaliation against the agency with the Office of Special Counsel and the
Merit Systems Protection Board (MSPB) based on his whistleblower status
and had recently prevailed on a claim filed with the MSPB.<3> In July
1987, complainant requested that E-1 be reassigned outside his division.
Complainant also made the first of numerous requests to receive legal
representation in matters relating to E-1 and expressed concerns about
his personal legal liability.
In July 1987, complainant wrote a memorandum entitled Useful Work Vice
Waste, in which he offered various options to effect E-1's reassignment
outside complainant's division.<4> Agency officials objected to
complainant's actions in providing E-1 with a copy of this memorandum
before giving it to his superiors and contended that this action precluded
management from working as a team to address the issue. In addition,
the language in the memorandum was viewed as accepting E-1's allegations,
without any attempt to first determine the accuracy of the allegations.
As noted below, agency officials also contended that they experienced
difficulty in obtaining an affidavit from complainant in connection with
one of E-1's complaints.
Complainant's performance was rated as Fully Successful in 1987
and 1988. In explaining his ratings of complainant under the various
performance elements, DD-1 testified that he acknowledged that
supervising E-1 presented certain unique challenges and that he had
taken this into account. However, he felt that complainant devoted an
inordinate amount of time to matters relating to E-1 to the detriment
of the other twenty or so employees under complainant's supervision.
DD-1 noted that a similarly situated supervisor (SEE-1, who was outside
complainant's protected classes) also had a difficult personnel problem
but was better able to appropriately allocate his time.
Meanwhile, in June 1988, complainant was responsible for completing
the supervisor's section of a claim filed with the Office of Workers
Compensation (OWCP) by E-1. Complainant and DD-1 disagreed with
respect to which box on the claim should be checked, the one labeled
traumatic injury or the one labeled occupational illness. DD-1
advised complainant to seek advice from the agency office responsible
for such matters. (Ultimately, E-1's claim was accepted by OWCP as an
occupational illness.) This scenario resulted in complainant's contention
in SI (b) that he was reprimanded for not contesting E-1's OWCP claim.
In early 1988, complainant and eight others applied for a position of
Supervisory Electronic Engineer, GM-14. (See SI (d)). Two candidates
were rated as Highly Qualified by the Selection Advisory Panel and
two others, including complainant, were rated as Qualified. After
interviewing these four candidates, the panel unanimously recommended one
of the candidates who had been rated as Highly Qualified. Complainant
was informed of his non-selection for this position in 1989. At his
hearing, complainant extensively questioned the panelists regarding his
rating and their recommendation of the other candidate.
In SI (f), complainant alleges that management officials conspired to
willfully destroy merit promotion records in connection with another
selection (Agency Vacancy Announcement No. N-44-87) because the records
were pertinent to one of his EEO complaints. The agency asserted that
complainant had not sought EEO counseling with respect to that vacancy
and that the records were later routinely purged in the normal course
of business.
Complainant's mid-year performance evaluation was held in February
1989. It stated that complainant had improved in the element Personnel
Management but noted under the element Communications that while he
had good communication downward, his communication with his peers
and supervisors needed improvement. Complainant requested guidance
on improving his performance, and DD-1 suggested in a hand written
memorandum that complainant could create the perception that [he]
trust[s] the motivation of management, because complainant's performance
during a meeting with the Commanding Officer (CO) gave the impression
that complainant may be a hostile witness' in any forthcoming [E-1]
hearings. DD-1 also suggested that complainant participate in some
extracurricular activities, such as the EEO Committee or the Recreation
and Welfare Committee.
During the hearing on complainant's instant complaint, DD-1 testified that
he did not use the term hostile witness in any legal sense; rather, he
was referring to the difficulty agency officials had in trying to obtain
an affidavit from complainant in connection with one of E-1's complaints.
(Further discussed in SI (c) below.) DD-1 maintained that the agency
was merely attempting to have complainant provide truthful information
in order to create an accurate record pertaining to E-1.
Regarding SI (c) (that the Attorney made intimidating and coercive
statements to him in April 1989), on April 24, 1989, the Attorney
contacted complainant to confirm a meeting scheduled for the purpose of
preparing him to testify at an upcoming EEO hearing on a complaint filed
by E-1. Complainant refused to meet with the Attorney, who responded
with words to the effect that he was shooting [himself] in the foot by
refusing to allow [her] to prepare [him] for the hearing. An agency
official thereafter issued a written order directing complainant to
cooperate with the Attorney. Complainant thereafter met with the
Attorney as ordered, and was not disciplined for his initial refusal.
(While complainant also made references to a conversation with the
Attorney on April 27, 1989, the EEOC Administrative Judge (AJ) found
insufficient evidence to establish what, if any, statements the Attorney
allegedly made on that date.)
Complainant's performance was rated as Exceeds Fully Successful in
1989, and the rating reflected improved performance in five elements,
including Communications. Complainant received a merit salary increase
of $686.00, as well as three $100.00 and one $75.00 Special Act awards.
Complainant later learned that SEE-1 received a performance rating
of Outstanding, and a merit performance award of $2,500.00. At the
hearing, DD-1 testified as to his reasons for rating SEE-1's performance
higher than complainant's, including his belief that SEE-1's programs
were more complex and technically diverse. Complainant contended that
SEE-1's performance should not have been more highly rated, arguing that
certain negative Program Management Status Reports should have been
considered to SEE-1's detriment. However, DD-1 testified that he did
not use these reports to evaluate an employee's performance, in part
because program status was affected by factors outside the employee's
control (such as funding) and in part because he feared that problems
would not be fully and accurately reported if the reports were used in
performance evaluations. DD-1 testified as to his reasons for rating
SEE-1 higher in the various performance elements, including Personnel
Management and Communications.
Complainant maintained that his performance ratings, and other agency
actions, constituted retaliation against him for not taking action
against, or for otherwise protecting, E-1. Complainant argued that he
was viewed as not playing ball and not being a team player. Agency
officials testified, and complainant conceded, that complainant was never
asked or directed to take any action against E-1. Agency officials
testified that they merely wished for E-1 to become a productive
employee who performed his work and recognized that the agency had to
balance accomplishment of its mission against E-1's right to pursue his
complaints. Complainant was advised to allow E-1 a reasonable amount
of time in connection with his complaints but not to permit E-1 to spend
a majority of his working hours on his complaints.
With respect to SI (e) (complainant received a letter from the DEEOO which
he contended was threatening and wrongfully remanded his amendments to
an EEO complaint back for informal counseling) and SI (h) (the DEEOO
issued a memorandum which complainant contended wrongfully remanded
one of his EEO complaints for further informal counseling), the record
reflects that complainant filed his formal EEO complaint directly with
the Secretary of the Navy, without providing a copy to the applicable
EEO Office. Complainant later began submitting a series of amendments
to his complaint, despite being advised by various agency officials on
numerous occasions (both verbally and in writing) that he could not add
new issues in this manner and must first seek EEO Counseling. On August
11, 1989, the agency rejected portions of the complaint. On appeal,
this Commission advised complainant that the agency properly sent
[various] claims ... back to the informal counseling stage because
they lack the necessary specificity to determine their acceptability
[and properly sent back other contentions because] the record does not
indicate that [they] were counseled. Complainant was advised that
each claim of discrimination must first be counseled before a formal
complaint on that claim may be filed [and] the agency properly refused to
amend complainant's formal complaint by adding claims that had not been
discussed with the EEO Counselor.<5> As noted by the AJ even after
receipt of this decision, complainant continued to submit amendments
to his complaint, eventually submitting some fourteen amendments.
In SI (i), complainant contended that his first line supervisor allegedly
verbally threatened him in August 1989 with a legal suit for statements he
made in amendments to one of his EEO complaints and in SI (j), complainant
stated that he learned in August 1989 that his supervisor was given access
to amendments to an EEO complaint, which violated his right to privacy.
The record reflects that, in the course of responding to complainant's
contentions, various persons became aware of them. Furthermore, because
complainant submitted his amendments' directly to the Secretary of the
Navy, as well as on occasion to the CO or other officials, more than the
usual number of people handled the material in the course of transmitting
it to the applicable EEO Office. Various persons expressed the belief
that they had been libeled by complainant's phrasing of his assertions and
inquired whether they could pursue legal action against complainant.<6>
An agency Executive Director suggested that DD-1 review the material
and consider counseling complainant regarding the wisdom of appearing
to make malicious statements ... with the intent to harm or destroy
the reputation, authority, or official standing of various persons.
DD-1 reviewed the material and consulted with the Attorney. Thereafter,
DD-1 met with complainant and advised him to state his assertions and his
objections to various actions without personally attacking the individuals
who took the actions. DD-1 testified that he took this step in part
because of complainant's frequent expressions of concern regarding his
personal liability in connection with E-1's complaints. DD-1 denied
that his discussion with complainant constituted an admonishment and
denied any intent to dissuade complainant from filing any complaints,
maintaining that he wished only to help [complainant] avoid [possible]
legal liability. Hearing Transcript (HT) at 1374.
In SI (k), complainant alleges discrimination when DD-1 informed him in
August 1989 that he had been directed to investigate a claim made by the
EEO Complaints Manager (through the DEEOO) that he had made her fear
for her life. The record reflects that complainant and the various
EEO personnel had poor interpersonal relations. During complainant's
initial meeting with the EEO Counselor, she viewed him as acting in a
hostile manner, inasmuch as he questioned her qualifications, neutrality,
maintenance of confidentiality, and knowledge of his reputation and
the reputation of E-1.<7> Complainant also was evasive about the
specifications of his complaint and again requested that an agency
attorney be appointed to represent him. As for SI (k), in August
1989, complainant went to the EEO Office to collect certain documents.
The EEO Complaints Manager asked him to sign a form acknowledging receipt
of the documents. The EEO Complaints Manager found complainant's
response and behavior frightening and asked him to leave the office,
but he refused. She informed the DEEOO of the incident, who in turn
informed the Executive Director. The Executive Director subsequently
instructed DD-1 to investigate the incident and, after the investigation,
complainant was issued a Letter of Reprimand for engaging in inappropriate
and disrespectful conduct.<8>
In SI (n), complainant contends that the Attorney allegedly passed a
sexually coercive note to complainant's attorney. The record reflects
that, in January 1991, complainant filed suit in the U.S. District Court
Southern District of California (the "District Court") (Case No. 90-0066-R
(CM)(February 19, 1991)). This suit included several of the specific
incidents challenged herein and complainant sued both the agency and
numerous supervisors and coworkers in the personal capacities, citing
various state and constitutional torts.<9> Shortly before this suit was
filed, the Attorney met with complainant's attorney in his office and
delivered various documents. Complainant asserts that the Attorney also
left a note stating: Hello Gorgeous! Wanna get romantic? I'll bring
the wine, you light the fire. In essence, complainant maintains that
the Attorney offered sexual favors in order to coerce his attorney to
persuade him not to file the civil suit. Complainant initially expressed
uncertainty as to whether the note was written by the Attorney, the DEEOO
or the EEO Counselor and requested that the AJ obtain a handwriting sample
to identify the writer; nonetheless, complainant had already sent copies
of the note to the Secretary of the Navy, the General Counsel for the
Navy and other federal agencies, along with accusations that the Attorney
had attempted to sexually coerce his attorney. All of the persons
suspected by complainant denied writing the note and complainant's
attorney did not know who wrote the note, expressing his opinion that
the matter was a waste of time and not worth discussing.
Following the dismissal of complainant's civil suit and the various
appeals to the Commission noted above, complainant's instant complaint
was investigated by the agency and the matter was heard before an AJ
over a 10-day period on various dates between July and September 1994.
After the hearing, complainant submitted a 107-page closing argument.
On October 25, 1995, the AJ issued a 59-page Recommended Decision (RD)
finding that complainant failed to establish discrimination or reprisal.
As a preliminary matter, the RD noted that in July 1994, the agency
filed a motion for summary judgment on SI (b), (c), (e), (f), (k) and
(l). After reviewing the agency's brief and the Report of Investigation
(complainant did not file a brief in opposition to the motion), and
drawing all inferences in the light most favorable to complainant, the
AJ found that there were no issues of material fact with respect to SI
(b), (c), (e), (f) and (k) inasmuch as complainant failed to establish a
prima facie case of discrimination or reprisal. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973); Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass.), aff'd, 545
F.2d 222 (1st Cir. 1976). Specifically, the AJ was not persuaded that
complainant established that the disagreement complainant had with DD-1
regarding how to complete the supervisor's section of the OWCP form was
tantamount to a reprimand for not contesting E-1's OWCP claim (SI (b)).
The AJ found that complainant failed to establish that any adverse action
was in fact taken against him when DD-1 merely informed him that he
thought [complainant] was checking the wrong box and ... should contact
the agency office responsible for such matters. Accordingly, the AJ
found that complainant failed to establish that he was aggrieved within
the meaning of the Commission's Regulations. 64 Fed. Reg. 37,644, 37,656
(1999)(to be codified and hereinafter referred to as EEOC Regulation
29 C.F.R. § 1614.107(a)(1)). Similarly, the AJ was not persuaded that
the statements made by the Attorney in April 1989 were intimidating and
coercive (SI (c)) or were sufficiently severe as to render complainant
aggrieved.
The AJ noted that this Commission had previously ruled that complainant
could not amend his EEO complaint to add new claims without first seeking
EEO counseling. See supra EEOC Appeal No. 01893799. Accordingly,
the AJ granted summary judgment with respect to SI (e) (complainant
received a letter from the DEEOO which he contended was threatening and
wrongfully remanded his amendments to an EEO complaint back for informal
counseling).<10>
As for SI (f) (management officials allegedly conspired to willfully
destroy merit promotion records (Agency Vacancy No. N-44-87) because
the records were pertinent to one of his EEO complaints), the AJ noted
that complainant had never timely sought EEO counseling with respect to
that selection. The AJ was not persuaded that complainant was aggrieved
by the agency's routine purging of these documents after expiration of
the applicable time period for retention. 29 C.F.R. § 1614.107(a)(1);
64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter referred
to as EEOC Regulation 29 C.F.R. § 1614.107(a)(2)).
Regarding SI (k) (DD-1 informed him in August 1989 that he had been
directed to investigate a claim made by the EEO Complaints Manager
that he had made her fear for her life), the AJ found that complainant
became agitated and yelled at the EEO Complaints Manager, and that
she was frightened by his raised voice, angry facial expressions, red
facial coloring and protruding neck veins. The AJ noted that after
DD-1's investigation, complainant was issued a Letter of Reprimand for
inappropriate and disrespectful conduct toward the EEO Complaints Manager.
The AJ determined that there was no evidence on record of any dispute
of a material fact regarding this incident and that complainant was not
subjected to discrimination or reprisal when the agency investigated
the concerns raised by the EEO Complaints Manager.
Turning to the merits of complainant's remaining contentions, the AJ first
ruled that complainant failed to establish that he was a individual with a
disability as defined in the Commission's Regulations. The AJ found that
complainant could not rest his claim of disability discrimination solely
on the assertion that his personnel files indicated that the Department
of Veterans Affairs had granted him a 30% disability rating entitlement.
Inasmuch as there was no evidence in the record regarding complainant's
alleged disability and no evidence that the agency regarded him as
disabled, the AJ found that he failed to meet his burden of establishing
that he was a qualified individual with a disability.<11>
Insofar as complainant contended that his 1988 performance appraisal
constituted retaliation for his support of E-1, the AJ found several
obstacles to [this] argument. First, while E-1 was known to have filed
claims of retaliation against the agency based on his whistleblower
status at the Office of Special Counsel and the MSPB, the AJ found
that there was no showing that E-1 had filed EEO complaints or raised
retaliation for activities protected by Title VII prior to 1988. Further,
while E-1 filed an EEO complaint in 1988, he filed it directly with the
Secretary of the Navy, and there was no evidence that the applicable
agency EEO office or officials became involved prior to 1989. The AJ
further found no evidence that DD-1 or the Executive Director were aware
of any activity undertaken by complainant on behalf of E-1 prior to
issuance of the performance appraisal in August 1988. The AJ held
that merely supervising an EEO claimant, or potential claimant, is
not a protected activity. Accordingly, the AJ was not persuaded that
complainant established a prima facie case of reprisal. See Hochstadt,
supra.
However, even assuming that complainant could establish a prima facie
case of reprisal with respect to his 1988 performance appraisal, the AJ
found that he failed to establish that the legitimate, nondiscriminatory
reasons articulated for his 1988 performance appraisal ratings were a
pretext for reprisal, noting that the 1988 appraisal was consistent with
DD-1's earlier appraisals of complainant's performance. Id.
With respect to this incident and all of the remaining incidents cited
by complainant, the AJ questioned whether he could establish a prima
facie case of discrimination based on his national origin, inasmuch as
complainant failed to establish that the relevant officials were aware
that he was one-quarter Native American. Assuming that complainant
could establish a prima facie case of discrimination based on his
national origin, the AJ again found no evidence that the legitimate,
nondiscriminatory reasons articulated for the appraisal were a pretext
for national origin discrimination. See McDonnell Douglas, supra.
While the AJ found that complainant could establish a prima facie case of
retaliation with respect to his 1989 performance appraisal, the AJ again
found that he failed to establish that the legitimate, nondiscriminatory
reasons articulated for his performance appraisal ratings were pretextual.
The AJ noted that complainant's appraisal ratings had in fact improved
from a rating of Marginal in 1986 (prior to E-1's placement in his
division or his own initial EEO activity) to Exceeds Fully Successful
in 1989, which was the highest rating ever achieved by complainant.
The AJ was unpersuaded that DD-1's hand written memorandum constituted
direct evidence of a retaliatory animus.<12> Instead, the AJ found
that complainant had in fact repeatedly shown hostility to management's
necessary attempts to gather factual information on his supervision of
[E-1 because he was] extremely fearful of being sued by [E-1] although
complainant was under an obligation as a supervisor to provide factual
information to any investigation of E-1's various claims or charges.
Again assuming that complainant could establish a prima facie case of
discrimination based on his national origin, the AJ found no evidence of
pretext, noting that the agency had provided a detailed explanation of the
reasons for SEE-1's higher ratings and resulting awards. Accordingly,
the AJ also found no discrimination or reprisal with respect to SI (l)
(SEE-1 received an Outstanding performance rating and a substantial
performance pay raise award, while complainant did not).
As for SI (d) (he was not selected for promotion to the position of
Supervisory Electronics Engineer, GM-14), the AJ found that one of
the panelists had learned of complainant's EEO activity at the time
of his interview, and that the Executive Director had learned of his
EEO activity at the time that he accepted the panel's recommendation
of another candidate. Accordingly, the AJ found that complainant
established a prima facie case of reprisal. The AJ found that, through
the testimony of various panelists, the agency had articulated legitimate,
nondiscriminatory reasons for its selection decision. As evidence of
pretext, complainant offered the testimony of a Subject Matter Expert,
who stated that he would have scored complainant two points higher
on one element. Noting that all of the applicants were scored in a
relatively short time under the same process, the AJ opined that had
all the applicants ... been re-scored at the Subject Matter Expert's
leisure, it is possible that more of them would get higher scores, as
he would have had more time to discover additional information. In
any event, an upward adjustment of two points in complainant's score
would not have made a difference inasmuch as he was included among
those candidates recommended for an interview. The AJ found that the
agency's Subject Matter Expert credibly testified as to the propriety
of the scores assigned to the candidates, and was not persuaded by
complainant's assertion (based on his scoring of his own application
and withering scoring of the selectee) that his scoring should have
been so high that no interviews would have been conducted. The AJ found
that complainant failed to establish that his non-selection constituted
reprisal or discrimination. See Bauer v. Bailar, 647 F.2d 1037, 1048
(10th Cir. 1981).
Complainant argued that the criticism he had received regarding his
Useful Work Vice Waste memorandum constituted evidence of reprisal.
However, the AJ found that the obvious thrust of the memorandum was that
[complainant] did not want [E-1] assigned to him and that, while it
may have been acceptable for complainant to submit a memorandum to this
effect to his supervisors, it was a matter of legitimate concern to his
supervisors that [complainant] first shared this memo with [E-1]. The AJ
found that agency officials were legitimately concerned by this action,
citing cases upholding management's need to function with one voice'
and demand loyalty in situations involving management's relations with
non-management employees.<13> The AJ found that agency management,
in a proper exercise of its discretion, assigned E-1 to complainant's
division and that complainant feared supervising E-1 out of concern for
his personal legal liability.
The AJ determined that complainant misinterpreted or misrepresented
the advice and direction given to him in matters concerning E-1 as
reprimands and threats. Although summary judgment had been granted on
these points, the AJ discussed SI (b) (DD-1's advice regarding how to
complete the supervisor's section of the OWCP form was tantamount to a
reprimand for not contesting E-1's OWCP claim) and SI (c) (statements
made by the Attorney in April 1989 were intimidating and coercive)
as examples of complainant's misinterpretation or misrepresentation
of management's actions. The AJ held that the Attorney acted properly
in seeking a meeting with complainant, in his role as E-1's supervisor,
prior to E-1's upcoming EEO hearing. Thus, the AJ found that the Attorney
gave complainant legitimate advice when she stated that he was shooting
himself in the foot by refusing to meet with her, in the sense that he
was engaging in a self-defeating effort as she could (and did) merely
request the Captain to order him to meet with her. Consequently, the
AJ was not persuaded by complainant's characterization of the Attorney's
actions or comments as retaliatory, intimidating or coercive. Finally,
the AJ was not persuaded that DD-1's memorandum or the Attorney's
statements constituted direct evidence of discrimination or reprisal.
While E-1 testified on complainant's behalf that higher-level supervisors
stated that complainant stood in the way of their desire to terminate
E-1, the AJ found it clear that E-1 had a strong bias against the
agency and testified in an evasive and theatrical manner to the extent
that the AJ declined to credit any of his testimony.
Noting that the Commission had issued decisions upholding the agency's
instructions to complainant that he must seek EEO counseling to raise
new claims of discrimination, the AJ found that complainant failed to
establish a prima facie case of discrimination or retaliation regarding SI
(h) (the DEEOO issued a memorandum which complainant contended wrongfully
remanded one of his EEO complaints for further informal counseling).
As for SI (i) (DD-1 allegedly verbally threatened him in August 1989
with a legal suit for statements he made in amendments to one of his
EEO complaints), the AJ was again not persuaded that complainant was
threatened or admonished, particularly in light of a number of concerns
raised by [complainant's] behavior in filing his EEO complaints including
his repeated filings of amendments despite the Commission's directions
to him, his refusal to cooperate with the EEO office in all matters
concerning counseling (including making appointments and allowing attempts
at informal resolution), and the overheated and venomous rhetoric of
the language used by complainant to state his contentions. The AJ noted
that while it is plainly a delicate matter to separate out protected from
the non-protected conduct, a complainant's deportment [is not insulated]
from adverse scrutiny ... insofar as it went beyond the pale of reasonable
opposition activity. Hochstadt, supra at 229. The AJ found that DD-1
did not attempt to restrain complainant from filing complaints and noted
that the agency processed the complaints even after complainant persisted
in filing amendments and was uncooperative with the EEO officials.
The AJ ruled that DD-1's statements did not constitute direct evidence
of reprisal, finding that DD-1 merely advised [complainant] to tone down
... his rhetoric and did not cross[] the line in trying to separate out
the protected from the unprotected activity. Insofar as complainant
claimed that the EEO Office and various officials breached his right
to confidentiality, the AJ found that his conduct caused the breaches.
Consequently, the AJ found that complainant failed to establish a prima
facie case of discrimination or reprisal.
With respect to SI (n) (the Attorney allegedly passed a sexually coercive
note to complainant's attorney), the AJ found that complainant failed
to establish any credible nexus between the agency and the note since
there was no evidence that the note originated at the agency and not
from within his attorney's own office.
As a final matter, the AJ noted that, based on their demeanor as well as
the internal consistency of their own testimony and other documentary
support of such testimony, he found the agency's witnesses credible.
In contrast, the AJ found that complainant's personal unprovoked attacks
on various participants in the hearing, ... exaggerations, and distortions
ultimately detracted from [his] credibility and the value which otherwise
might have attached to his many uncorroborated statements.
In its FAD, the agency adopted the RD. On February 23, 1996, complainant
timely appealed. In his 276-page appeal brief, complainant primarily
presented the same contentions set forth in the closing arguments
submitted to the AJ. Complainant also asserted that the AJ: (1) held
him to standards exceeding those which required for pro se parties
under the Federal Rules of Civil Procedure; (2) essentially copied the
agency's closing statement into the RD; (3) made factual misstatements;
(4) failed to follow the District Court's order; (5) erred in granting
summary judgment; (6) denied him a fair hearing; (7) erred in not finding
E-1's testimony worthy of weight and credence; (8) erred in various
rulings with respect to discovery, the introduction of evidence and
the presentation of witnesses; (9) erred in finding that the agency's
witnesses were credible; (10) erred in failing to hold that complainant
produced direct evidence of discrimination (including DD-1's memorandum
(see n. 10 supra)); and (11) misinterpreted and misapplied the law.
Apparently interpreting the District Court's Order as requiring him to
file an appeal with this Commission, complainant also protested being
compelled to exhaust the administrative process.
In its decision on the appeal, the Commission stated that the agency
had failed to submit a complete record, including copies of the formal
complaints, EEO Counselors' reports, report of investigation, hearing
transcripts and exhibits, even after being requested to do so. The
Commission further stated that, "in his notice of appeal, the complainant
states that he did not receive copies of the hearing transcripts and is
therefore unable to prepare and file a brief in support of his appeal."
Because, absent the complaint file, the Commission was unable to
adjudicate the appeal, the Commission vacated the FAD and ordered the
agency to prepare and submit a complete complaint file, including an
index, to provide complainant with a copy of the index and exhibits,
and to then issue a new FAD.
Both complainant and the agency filed a request to reopen the previous
Commission decision. In his request to reopen, complainant protests that
the prior decision "turns the clock back" more than two years, provides
the agency with the opportunity to create a new case file and places an
undue burden on him to respond to yet another FAD. Complainant notes that
nowhere in his appeal did he state that he had not received a copy of
the hearing transcripts and asserts that the prior decision erroneously
implies that he had not submitted a brief on appeal. Complainant argues
that his 276-page appeal brief, together with its 288 pages of exhibits,
contain overwhelming argument and evidence, including direct evidence,
in his favor.
In its request to reopen, the agency asserts that any failure to produce
the record was inadvertent. The agency submits a copy of a cover letter
to the Commission, dated March 25, 1996, which states that "enclosed [is]
the discrimination complaint case record of [complainant] and [the agency]
certif[ies] that it is complete," together with a certified return receipt
card evidencing the Commission's receipt of the transmittal.<14> The
agency states that "a recent search of [its] files managed to locate
a portion of the records, the hearing transcript and exhibits from
the hearing." The agency notes that, inasmuch as complainant will
clearly appeal a new FAD (which presumably would again adopt the RD),
the prior decision only serves to prolong the processing time and the
agency joins in complainant's arguments for issuance of a Commission
decision on the merits.
ANALYSIS AND FINDINGS
The Commission first notes for the record that the file before it
contains the following specified material, as well as a large amount of
other miscellaneous material not specifically noted: (1) the Report of
Investigation, including the complaints and an index to the accompanying
four volumes of Exhibits (Exhibits 1 - 128); (2) complainant's Rebuttal
to the Report of Investigation (including 58 attachments, with an index);
(3) all ten volumes of the Hearing Transcript; (4) a volume labeled AJ's
Exhibits (1 - 16); (5) a volume labeled Complainant's Exhibits (1 - 49);
(6) a volume labeled Agency's Exhibits (1 - 23); (7) the agency's Motion
for Summary Judgment; (8) complainant's written Closing Argument submitted
to the AJ (107 pages); (9) the agency's written Closing Statement;
(10) the RD; (11) the FAD; (12) the appeal, including complainant's
initial statement and his 276-page brief and 288 pages of exhibits; (13)
complainant's civil complaint filed in District Court; (14) the decision
issued by the District Court; (15) complainant's brief filed with the
United States Court of Appeals (9th Cir.); and (16) the undated decision
issued by the Ninth Circuit (affirming the District Court's dismissal
of his civil suit for failure to exhaust his administrative remedies and
the dismissal of his constitutional and state-law tort claims against his
supervisors and coworkers as precluded by the Civil Service Remedies Act).
Accordingly, the Commission finds that the record is complete and hereby
GRANTS the Requests to Reopen the prior decision.
The Commission next notes that its regulations confer broad discretion on
Administrative Judges in the conduct of hearings. 64 Fed. Reg. 37,644,
37,657 (1999)(to be codified and hereinafter referred to as EEOC
Regulation 29 C.F.R. § 1614.109(e)). After a careful review of the
hearing transcript, the Commission finds that the AJ correctly determined
that complainant repeatedly engaged in contumacious conduct, including
cursing the AJ when dissatisfied with the orders issued by him and
impugning his character, showing disrespect for the agency's attorneys,
and making personal and unprovoked attacks on participants in the hearing.
Given the foregoing, it is highly unlikely that the Commission would have
found an abuse of discretion had the AJ chosen to terminate the hearing
and to remand the case to the agency for the issuance of a FAD without
a hearing. See Bradley v. United States Postal Service; EEOC Appeal
Nos. 01952244 (September 18, 1996) and 01963827 (September 18, 1996). The
Commission notes that complainant repeatedly invoked the decision issued
by the District Court which ordered the agency to permit complainant to
exhaust his administrative remedies by conducting a full investigation and
a review of the merits of his claims. However, the Commission does not
believe that the District Court had any intent of condoning contumacious
conduct before an Administrative Judge or insulating complainant from
the consequences of such conduct. Accordingly, while the Commission
finds commendable the patience exhibited by the AJ in this matter, the
Commission advises complainants not to anticipate that such conduct will
be tolerated. The Commission further finds that the AJ did not abuse
his discretion by denying complainant's requests that this matter be
reassigned to another Administrative Judge.
Finally, after a thorough review of the record, the Commission finds
that the RD adequately set forth the relevant facts and analyzed the
appropriate regulations, policies and laws.<15> Pursuant to 64 Fed. Reg
37,644, 37,659 (1999) (to be codified at 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. Substantial 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 whether or not discriminatory intent existed is a
factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293
(1982). The Commission notes that a lengthy hearing was conducted and
the AJ was required to weigh and assess the credibility of a number of
witnesses in determining the ultimate question of whether complainant
was subjected to discrimination or reprisal. The Commission finds no
reason to disturb the AJ's finding that complainant failed to establish
discrimination or reprisal.
In so finding, the Commission first notes that the AJ properly determined
that complainant could not prevail on his claim of national origin or
disability discrimination inasmuch as he failed to establish either
that relevant officials were aware of his Native American heritage or
that he was an individual with a disability as defined in the applicable
regulations.
Insofar as complainant essentially alleges that he was a victim of
discriminatory terms and conditions of employment in that he was
subjected to harassment in retaliation for protected EEO activity, we
note that harassment of an employee that would not occur but for the
employee's participation in protected EEO activity is unlawful if it is
sufficiently patterned or pervasive. See, e.g., McKinney v. Dole, 765
F.2d 1129, 1138-39 (D.C. Cir. 1985); see also deLange v. Department of
State, EEOC Request No. 05940405 (March 3, 1995). That is, the agency
actions at issue must be both sufficiently pervasive and directed at
the employee because of his or her membership in a protected class.
After a careful review of the record, the Commission finds that the
AJ properly determined that complainant failed to establish that the
complained of actions would not have been taken but for his participation
in protected EEO activity. With respect to a number of the challenged
agency actions (e.g. SI (b), (c), (f), (i), and (n)), the AJ's finding
that complainant's version of the events in question constituted a
misinterpretation or misrepresentation of the agency's actions is
supported by substantial evidence of record. With respect to other
challenged agency actions (e.g. SI (a), (d) and (l)), the agency
articulated legitimate nondiscriminatory reasons for such actions and
complainant failed to prove that these reasons were pretextual. Thus,
having failed to establish that such actions either occurred as alleged
or were taken on the basis of his membership in a protected class,
complainant failed to establish that he was subjected to prohibited
harassment. See Applewhite v. Equal Employment Opportunity Commission,
EEOC Appeal No. 01994939 (April 6, 2000); Wolf v. United States Postal
Service, EEOC Appeal No. 01961559 (July 23, 1998); EEOC Guidance on
Investigating, Analyzing Retaliation Claims, No. 915.003 (May 20, 1998).
In addition, insofar as certain of the incidents challenged by complainant
concern the processing of his underlying EEO complaints (e.g. SI (e),
(g), (h) and (j)), the AJ's findings that the delays in processing
primarily were attributable to complainant's lack of cooperation (see
n. 7 supra) and that the other challenged agency actions were in fact in
accordance with 29 C.F.R. Part 1614, are supported by substantial evidence
of record. Accordingly, there was no need for the AJ to consider whether
the challenged agency actions had any material effect on the processing
of this matter. See EEOC Management Directive 110, Ch. 5, Sec. IV.D.
Therefore, it is the decision of the Commission to AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
The Commission may, in its discretion, reconsider the decision in this
case <16> 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(b); 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:
_____________________
Frances M. Hart
Executive Officer
Executive Secretariat
September 19, 2000
_______________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
________________________
Equal Employment Assistant
_______________
Date
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 In his complaint, complainant had listed his national origin as German,
French and Native American, but at the hearing, he based his claim of
national origin discrimination solely on his Native American heritage.
Complainant also withdrew age as a basis at the hearing.
3 See, e.g., MSPB Docket Nos. SF07528810191 (April 13, 1988);
SF07529810525 (July 31, 1989); SF07528910526 (July 31, 1989);
SF075288C0191 (August 11, 1989).
4 Presumably, complainant intended to title this memorandum "Useful Work
Versus Waste."
5 See EEOC Appeal No. 01893799 (December 8, 1989). The Commission
affirmed the agency's rejection of certain matters on the basis that
complainant had not timely sought EEO counseling; however, other matters
were remanded back to the agency for further processing.
6 While numerous examples could be cited, the Commission will note here
only that complainant described an official as having a predisposition
to depression, alcoholism and suicidal tendencies and otherwise accused
various officials of engaging in unethical and illegal behaviors.
7 The AJ noted that complainant demonstrated a lack of cooperation
with various persons during the processing of his complaint, including
cursing at and otherwise engaging in contemptuous behavior before the
AJ and refusing to cooperate with the first EEO Investigator assigned
to the extent that the investigator resigned from the investigation
and returned the file. The AJ found that most of the delays in
processing complainant's complaint were attributable to his lack of
cooperation although the backlog in the applicable agency EEO Office
was a contributing factor.
8 The Letter of Reprimand eventually was purged from complainant's
Official Personnel File, and this Commission previously upheld the
agency's dismissal of a claim concerning its issuance. See EEOC Request
No. 05910583 (February 26, 1992).
9 The District Court dismissed complainant's complaint pursuant to its
Order that the agency reinstate his instant complaint for investigation
and a review of the merits.
10 The AJ did not, however, grant summary judgment on SI (h) (the DEEOO
issued a memorandum which he contended wrongfully remanded one of his
EEO complaints for further informal counseling) apparently because this
memorandum was issued prior to the Commission's issuance of its decision
in EEOC Appeal No. 01893799.
11 Complainant conceded that his impairment did not interfere with any
major life activity. See, e.g., Complainant's Closing Argument at 3.
12 As noted supra, this memorandum advised complainant that he could
improve his performance if he would create the perception that
[he] trust[s] the motivation of management, and cited complainant's
performance during a meeting with the CO which gave the impression
that complainant may be a hostile witness' in any forthcoming [E-1]
hearings.
13 See, e.g., Brown v. Department of Transportation, F.A.A., 735 F.2d 543
(Fed. Cir. 1984).
14 The Commission notes that the record now before it also includes a
facsimile from the agency, dated August 19, 1996, stating "Everything
was sent to you. We have nothing here." Another agency letter, dated
June 24, 1998, also certifies to the transmission of another complete
copy of the record.
15 The 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.
16 This is the first Commission decision addressing the merits of this
matter.
| [
"Lange v. Department of State, EEOC Request No. 05940405 (March 3, 1995)",
"Applewhite v. Equal Employment Opportunity Commission, EEOC Appeal No. 01994939 (April 6, 2000)",
"Wolf v. United States Postal Service, EEOC Appeal No. 01961559 (July 23, 1998)",
"411 U.S. 792",
"545 F.2d 222",
"647 F.2d 1037",
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371 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120150460.txt | 0120150460.txt | TXT | text/plain | 33,317 | Octavio C.,1 Complainant, v. Ryan K. Zinke, Secretary, Department of the Interior (Geological Survey), Agency. | November 19, 2014 | Appeal Number: 0120150460
Background:
At the time of events giving rise to this complaint, Complainant worked as a Hydrologist, GS-1315-12 at the Agency's Missouri Water Science Center facility (MOWSC) in Rolla, Missouri.
On November 18, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), age (51), reprisal for prior protected EEO activity and subjected him to a hostile work environment when:
1. On September 12, 2013, he was notified by the selecting official that he was not selected for the GS-13 Supervisory Hydrologist position;
2. On September 11, 2013, the selecting official did not try to discern between the best qualified candidates, misrepresented the position and asked him if he preferred a GS-13 non-supervisory or a GS-13 supervisory position;
3. On September 10, 2013, his first level Supervisor instructed him to pull his application prior to being interviewed for the Supervisor Hydrologist position in Rolla, Missouri;
4. on August 20, 2013, the selecting official told him that the supervisory position was the Selectee's position;
5. on August 20, 2013, his first level supervisor instructed him not to apply for the supervisory hydrologist position in Rolla, Missouri;
6. on an unspecified date in October 2010, he did not receive his promotion after being told that he had the director's approval for the promotion, pending a letter of reference;
7. on an unspecified date in October 2007 and October 2008, he was not allowed to rewrite his performance standards as another technical specialist was allowed to do;
8. On October 24, 2013, after he contacted the EEO Counselor, his first level supervisor made remarks to him about his EEO activity; and
9. On May 9, 2014, Complainant received a Letter of Warning (LOW) from his immediate supervisor subjecting him to a hostile work environment.
At the time of these events, Complainant was a thirty (30) year employee in the United States Geological Survey (USGS). In August 2013, he applied for the position of Supervisory Hydrologist. At the time of his application, Complainant had been working as a Hydrologist, GS-1315-12. Another applicant who had applied for the same position, C-1 (White male, age 45) was chosen for the position. C-1 had been working as a Supervisory Hydrologist GS-1315-12.
Complainant objected to the selection. He believed that he had credentials and experience for the position that were superior to those possessed by C-1. Complainant believed for several reasons that the process for the selection of the Supervisory Hydrologist was unfair. He noted that previously a woman had been selected for the position. Years later, after she retired, the position had remained vacant until this current selection decision. Complainant stated that he believed the previous occupant had been selected because she was a woman.
The Selection Officer (SO) maintained that C-1 had a past performance that was superior to Complainant's. C-1 received a rating of "Superior" as a Supervisory Hydrologist. C-1 did a good job supervising staff and was seen as the reason that MOWSC was the leader in the USGS concerning data collection. C-1's evaluations for FY 2011, FY 2012, and FY 2013 indicated that he received "Superior" ratings. The record shows that C-1 had consistently performed at the level of "Superior."
Complainant was in a non-supervisory position. His evaluations indicate that he received Superior" ratings for FY 2011 and FY 2012, and a "Fully Successful" rating for FY 2013. Complainant was recognized in the evaluation for superior performance in analyzing hydraulic data and for working closely with another office on preparing statistical data sets. The record also showed that Complainant had received some lower performance ratings in earlier years.
With respect to Complainant's receipt of a LOW, the Agency maintains that Complainant failed to follow instructions about a project, ceased communication with his supervisor, and took the project in a different direction than that which was agreed upon by the team.
With respect to claim 8, Complainant maintained that on October 24, 2013, his immediate supervisor, S-1, approached him about his prior EEO activity, after Complainant contacted an EEO Counselor about his non-selection. According to Complainant, S-1 asked him, "What is the pre-complaint email that I got all about, why now, if you have filed something, was this about this announcement?" Complainant further stated that S-1 made the following remarks: 1) you should not have done it and you "pulled the trigger" too fast; 2) your work has been outstanding and maybe in six months they could try to get you a GS-13 position; 3) you should not have filed; 4) this will only make everyone mad and no one will win, if this continues; 5) he would have picked C-1; and 6) a person's career means nothing to SO, and that "what matters is what you have done for him." Complainant attested that no one else was present when his supervisor made the remarks about him contacting an EEO Counselor. He was upset that S-1 "did not respect his request on this matter when he stated that they should not be discussing the matter." He avers that S-1 spoke to him several times about this matter.
According to Complainant, prior to his interview for the position, S-1 suggested that he pull his application for the Supervisory Hydrologist position. S-1 told him that he should pursue a GS-13 non-supervisory position even though Complainant was competing for a GS-13, Supervisory Hydrologist position. Complainant contends that S-1's statements demonstrated: 1) a practice of discrimination; 2) an improper influence on an applicant to withdraw from competition for a position; 3) an improper exercise of influence to harm a particular employee; 4) an "intentional obstruction of an employee from competing for employment;" and 5) a violation of the merit system principles.
According to Complainant, S-1 was relentless during their discussion and became irate when Complainant departed. Complainant stated that S-1 knew that if he withdrew before the interview, he had no means to contest the result, file a grievance, or file an EEO complaint. According to Complainant, S-1 stated that he should not try to take this position from C-1 and that he could still try to get a GS-13 non-supervisory promotion. Complainant replied, "that the best applicant based on merit should be picked."
S-1 admitted to having a conversation with Complainant about his EEO activity. S-1, however, maintains that the statements attributed to him by Complainant were not accurate, were misquoted, or were "extracted from other conversations." S-1 stated that the conversation was initially inquisitive, and that there was an honest and heartfelt tone from both parties. S-1 stated "that the email about a pre-EEO complaint was weighing on his mind, and he asked Complainant if there was anything he should be aware of regarding an EEO issue with one of their students." S-1 stated that Complainant indicated that it was not one of the students who had engaged in EEO activity. S-1 said that he knew Complainant was disappointed about the recent GS-13 supervisory selection and he asked if Complainant was involved in some manner. Complainant affirmed that it was him and S-1 claims that "they both agreed to limit discussion of the issue." According to S-1, although he agreed with limiting the conversation, he did ask Complainant, "why now?" Complainant, he stated, indicated that there was a short timeframe for contacting an EEO counselor.
S-1 did not recall telling Complainant that "he should not have done it," but he did recall making the comment about "pulling a trigger." S-1 referred the investigator to a summary of his conversation with the EEO Counselor contained in the EEO Counselor's Report for the context of this comment.2 In the report, S-1 maintained that after Complainant indicated that he did not want to hurt anyone, but was doing it for his family, S-1 stated that he told Complainant that his initial thought had been that Complainant had "pulled the trigger to soon," but that he now understood why Complainant had to move forward as he did.
S-1 did not recall telling Complainant that he should not have filed, nor did he recall saying, "this will only make everyone mad and no one will win, if this continues." S-1 recalled, however, acknowledging that the EEO process was probably not "the most enjoyable path for anyone involved." He further attested that he did not express anger toward Complainant.
S-1 recalled telling Complainant that if rumors of changes in management occurred and he had a good evaluation in hand, the time would be ripe for him to have another conversation with senior management about a technical GS-13 position in their center. S-1 stated that he "empathized with Complainant," and maintained that he wished him the best throughout the process and that regardless of the outcome, he would follow through with his promise to discuss the potential GS-13 with management. S-1 pointed out that he was not certain whether his conversation with Complainant occurred prior to or after his conversation with the EEO Investigator, and it was not evident until October 30, 2013, that he was named as having contributed to the alleged discriminatory actions. He "averred" that he did not make any other statements.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency acknowledged that claims 6 and 7 were not investigated because they had been dismissed as being untimely. The decision concluded that Complainant did not establish discrimination with respect to the remainder of his claims.
CONTENTIONS ON APPEAL
On appeal, Complainant raises no new or additional arguments of fact or law. Complainant contends that the ROI supports his contentions of discrimination based on age, sex, reprisal and a hostile work environment. Complainant contends that he was more experienced than the person selected for the GS-13 Supervisory Hydrologist position and that the Agency's non-selection of him ignored his long record of accomplishments as a Hydrologist.
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 MODIFIES the Agency's final decision.
ISSUES PRESENTED
Whether Complainant was discriminated against based on his sex (male), age (51) and reprisal (EEO activity) when, among other things, he was not selected for the position of Supervisory Hydrologist and received a Letter of Warning (LOW); and (2) whether certain comments by his supervisor violated the Commission regulations regarding retaliation.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Hydrologist, GS-1315-12 at the Agency's Missouri Water Science Center facility (MOWSC) in Rolla, Missouri.
On November 18, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), age (51), reprisal for prior protected EEO activity and subjected him to a hostile work environment when:
1. On September 12, 2013, he was notified by the selecting official that he was not selected for the GS-13 Supervisory Hydrologist position;
2. On September 11, 2013, the selecting official did not try to discern between the best qualified candidates, misrepresented the position and asked him if he preferred a GS-13 non-supervisory or a GS-13 supervisory position;
3. On September 10, 2013, his first level Supervisor instructed him to pull his application prior to being interviewed for the Supervisor Hydrologist position in Rolla, Missouri;
4. on August 20, 2013, the selecting official told him that the supervisory position was the Selectee's position;
5. on August 20, 2013, his first level supervisor instructed him not to apply for the supervisory hydrologist position in Rolla, Missouri;
6. on an unspecified date in October 2010, he did not receive his promotion after being told that he had the director's approval for the promotion, pending a letter of reference;
7. on an unspecified date in October 2007 and October 2008, he was not allowed to rewrite his performance standards as another technical specialist was allowed to do;
8. On October 24, 2013, after he contacted the EEO Counselor, his first level supervisor made remarks to him about his EEO activity; and
9. On May 9, 2014, Complainant received a Letter of Warning (LOW) from his immediate supervisor subjecting him to a hostile work environment.
At the time of these events, Complainant was a thirty (30) year employee in the United States Geological Survey (USGS). In August 2013, he applied for the position of Supervisory Hydrologist. At the time of his application, Complainant had been working as a Hydrologist, GS-1315-12. Another applicant who had applied for the same position, C-1 (White male, age 45) was chosen for the position. C-1 had been working as a Supervisory Hydrologist GS-1315-12.
Complainant objected to the selection. He believed that he had credentials and experience for the position that were superior to those possessed by C-1. Complainant believed for several reasons that the process for the selection of the Supervisory Hydrologist was unfair. He noted that previously a woman had been selected for the position. Years later, after she retired, the position had remained vacant until this current selection decision. Complainant stated that he believed the previous occupant had been selected because she was a woman.
The Selection Officer (SO) maintained that C-1 had a past performance that was superior to Complainant's. C-1 received a rating of "Superior" as a Supervisory Hydrologist. C-1 did a good job supervising staff and was seen as the reason that MOWSC was the leader in the USGS concerning data collection. C-1's evaluations for FY 2011, FY 2012, and FY 2013 indicated that he received "Superior" ratings. The record shows that C-1 had consistently performed at the level of "Superior."
Complainant was in a non-supervisory position. His evaluations indicate that he received Superior" ratings for FY 2011 and FY 2012, and a "Fully Successful" rating for FY 2013. Complainant was recognized in the evaluation for superior performance in analyzing hydraulic data and for working closely with another office on preparing statistical data sets. The record also showed that Complainant had received some lower performance ratings in earlier years.
With respect to Complainant's receipt of a LOW, the Agency maintains that Complainant failed to follow instructions about a project, ceased communication with his supervisor, and took the project in a different direction than that which was agreed upon by the team.
With respect to claim 8, Complainant maintained that on October 24, 2013, his immediate supervisor, S-1, approached him about his prior EEO activity, after Complainant contacted an EEO Counselor about his non-selection. According to Complainant, S-1 asked him, "What is the pre-complaint email that I got all about, why now, if you have filed something, was this about this announcement?" Complainant further stated that S-1 made the following remarks: 1) you should not have done it and you "pulled the trigger" too fast; 2) your work has been outstanding and maybe in six months they could try to get you a GS-13 position; 3) you should not have filed; 4) this will only make everyone mad and no one will win, if this continues; 5) he would have picked C-1; and 6) a person's career means nothing to SO, and that "what matters is what you have done for him." Complainant attested that no one else was present when his supervisor made the remarks about him contacting an EEO Counselor. He was upset that S-1 "did not respect his request on this matter when he stated that they should not be discussing the matter." He avers that S-1 spoke to him several times about this matter.
According to Complainant, prior to his interview for the position, S-1 suggested that he pull his application for the Supervisory Hydrologist position. S-1 told him that he should pursue a GS-13 non-supervisory position even though Complainant was competing for a GS-13, Supervisory Hydrologist position. Complainant contends that S-1's statements demonstrated: 1) a practice of discrimination; 2) an improper influence on an applicant to withdraw from competition for a position; 3) an improper exercise of influence to harm a particular employee; 4) an "intentional obstruction of an employee from competing for employment;" and 5) a violation of the merit system principles.
According to Complainant, S-1 was relentless during their discussion and became irate when Complainant departed. Complainant stated that S-1 knew that if he withdrew before the interview, he had no means to contest the result, file a grievance, or file an EEO complaint. According to Complainant, S-1 stated that he should not try to take this position from C-1 and that he could still try to get a GS-13 non-supervisory promotion. Complainant replied, "that the best applicant based on merit should be picked."
S-1 admitted to having a conversation with Complainant about his EEO activity. S-1, however, maintains that the statements attributed to him by Complainant were not accurate, were misquoted, or were "extracted from other conversations." S-1 stated that the conversation was initially inquisitive, and that there was an honest and heartfelt tone from both parties. S-1 stated "that the email about a pre-EEO complaint was weighing on his mind, and he asked Complainant if there was anything he should be aware of regarding an EEO issue with one of their students." S-1 stated that Complainant indicated that it was not one of the students who had engaged in EEO activity. S-1 said that he knew Complainant was disappointed about the recent GS-13 supervisory selection and he asked if Complainant was involved in some manner. Complainant affirmed that it was him and S-1 claims that "they both agreed to limit discussion of the issue." According to S-1, although he agreed with limiting the conversation, he did ask Complainant, "why now?" Complainant, he stated, indicated that there was a short timeframe for contacting an EEO counselor.
S-1 did not recall telling Complainant that "he should not have done it," but he did recall making the comment about "pulling a trigger." S-1 referred the investigator to a summary of his conversation with the EEO Counselor contained in the EEO Counselor's Report for the context of this comment.2 In the report, S-1 maintained that after Complainant indicated that he did not want to hurt anyone, but was doing it for his family, S-1 stated that he told Complainant that his initial thought had been that Complainant had "pulled the trigger to soon," but that he now understood why Complainant had to move forward as he did.
S-1 did not recall telling Complainant that he should not have filed, nor did he recall saying, "this will only make everyone mad and no one will win, if this continues." S-1 recalled, however, acknowledging that the EEO process was probably not "the most enjoyable path for anyone involved." He further attested that he did not express anger toward Complainant.
S-1 recalled telling Complainant that if rumors of changes in management occurred and he had a good evaluation in hand, the time would be ripe for him to have another conversation with senior management about a technical GS-13 position in their center. S-1 stated that he "empathized with Complainant," and maintained that he wished him the best throughout the process and that regardless of the outcome, he would follow through with his promise to discuss the potential GS-13 with management. S-1 pointed out that he was not certain whether his conversation with Complainant occurred prior to or after his conversation with the EEO Investigator, and it was not evident until October 30, 2013, that he was named as having contributed to the alleged discriminatory actions. He "averred" that he did not make any other statements.
At the | Octavio C.,1
Complainant,
v.
Ryan K. Zinke,
Secretary,
Department of the Interior
(Geological Survey),
Agency.
Appeal No. 0120150460
Agency No. USGS130474
DECISION
On November 19, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency's October 16, 2014, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission MODIFIES the Agency's final decision.
ISSUES PRESENTED
Whether Complainant was discriminated against based on his sex (male), age (51) and reprisal (EEO activity) when, among other things, he was not selected for the position of Supervisory Hydrologist and received a Letter of Warning (LOW); and (2) whether certain comments by his supervisor violated the Commission regulations regarding retaliation.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Hydrologist, GS-1315-12 at the Agency's Missouri Water Science Center facility (MOWSC) in Rolla, Missouri.
On November 18, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), age (51), reprisal for prior protected EEO activity and subjected him to a hostile work environment when:
1. On September 12, 2013, he was notified by the selecting official that he was not selected for the GS-13 Supervisory Hydrologist position;
2. On September 11, 2013, the selecting official did not try to discern between the best qualified candidates, misrepresented the position and asked him if he preferred a GS-13 non-supervisory or a GS-13 supervisory position;
3. On September 10, 2013, his first level Supervisor instructed him to pull his application prior to being interviewed for the Supervisor Hydrologist position in Rolla, Missouri;
4. on August 20, 2013, the selecting official told him that the supervisory position was the Selectee's position;
5. on August 20, 2013, his first level supervisor instructed him not to apply for the supervisory hydrologist position in Rolla, Missouri;
6. on an unspecified date in October 2010, he did not receive his promotion after being told that he had the director's approval for the promotion, pending a letter of reference;
7. on an unspecified date in October 2007 and October 2008, he was not allowed to rewrite his performance standards as another technical specialist was allowed to do;
8. On October 24, 2013, after he contacted the EEO Counselor, his first level supervisor made remarks to him about his EEO activity; and
9. On May 9, 2014, Complainant received a Letter of Warning (LOW) from his immediate supervisor subjecting him to a hostile work environment.
At the time of these events, Complainant was a thirty (30) year employee in the United States Geological Survey (USGS). In August 2013, he applied for the position of Supervisory Hydrologist. At the time of his application, Complainant had been working as a Hydrologist, GS-1315-12. Another applicant who had applied for the same position, C-1 (White male, age 45) was chosen for the position. C-1 had been working as a Supervisory Hydrologist GS-1315-12.
Complainant objected to the selection. He believed that he had credentials and experience for the position that were superior to those possessed by C-1. Complainant believed for several reasons that the process for the selection of the Supervisory Hydrologist was unfair. He noted that previously a woman had been selected for the position. Years later, after she retired, the position had remained vacant until this current selection decision. Complainant stated that he believed the previous occupant had been selected because she was a woman.
The Selection Officer (SO) maintained that C-1 had a past performance that was superior to Complainant's. C-1 received a rating of "Superior" as a Supervisory Hydrologist. C-1 did a good job supervising staff and was seen as the reason that MOWSC was the leader in the USGS concerning data collection. C-1's evaluations for FY 2011, FY 2012, and FY 2013 indicated that he received "Superior" ratings. The record shows that C-1 had consistently performed at the level of "Superior."
Complainant was in a non-supervisory position. His evaluations indicate that he received Superior" ratings for FY 2011 and FY 2012, and a "Fully Successful" rating for FY 2013. Complainant was recognized in the evaluation for superior performance in analyzing hydraulic data and for working closely with another office on preparing statistical data sets. The record also showed that Complainant had received some lower performance ratings in earlier years.
With respect to Complainant's receipt of a LOW, the Agency maintains that Complainant failed to follow instructions about a project, ceased communication with his supervisor, and took the project in a different direction than that which was agreed upon by the team.
With respect to claim 8, Complainant maintained that on October 24, 2013, his immediate supervisor, S-1, approached him about his prior EEO activity, after Complainant contacted an EEO Counselor about his non-selection. According to Complainant, S-1 asked him, "What is the pre-complaint email that I got all about, why now, if you have filed something, was this about this announcement?" Complainant further stated that S-1 made the following remarks: 1) you should not have done it and you "pulled the trigger" too fast; 2) your work has been outstanding and maybe in six months they could try to get you a GS-13 position; 3) you should not have filed; 4) this will only make everyone mad and no one will win, if this continues; 5) he would have picked C-1; and 6) a person's career means nothing to SO, and that "what matters is what you have done for him." Complainant attested that no one else was present when his supervisor made the remarks about him contacting an EEO Counselor. He was upset that S-1 "did not respect his request on this matter when he stated that they should not be discussing the matter." He avers that S-1 spoke to him several times about this matter.
According to Complainant, prior to his interview for the position, S-1 suggested that he pull his application for the Supervisory Hydrologist position. S-1 told him that he should pursue a GS-13 non-supervisory position even though Complainant was competing for a GS-13, Supervisory Hydrologist position. Complainant contends that S-1's statements demonstrated: 1) a practice of discrimination; 2) an improper influence on an applicant to withdraw from competition for a position; 3) an improper exercise of influence to harm a particular employee; 4) an "intentional obstruction of an employee from competing for employment;" and 5) a violation of the merit system principles.
According to Complainant, S-1 was relentless during their discussion and became irate when Complainant departed. Complainant stated that S-1 knew that if he withdrew before the interview, he had no means to contest the result, file a grievance, or file an EEO complaint. According to Complainant, S-1 stated that he should not try to take this position from C-1 and that he could still try to get a GS-13 non-supervisory promotion. Complainant replied, "that the best applicant based on merit should be picked."
S-1 admitted to having a conversation with Complainant about his EEO activity. S-1, however, maintains that the statements attributed to him by Complainant were not accurate, were misquoted, or were "extracted from other conversations." S-1 stated that the conversation was initially inquisitive, and that there was an honest and heartfelt tone from both parties. S-1 stated "that the email about a pre-EEO complaint was weighing on his mind, and he asked Complainant if there was anything he should be aware of regarding an EEO issue with one of their students." S-1 stated that Complainant indicated that it was not one of the students who had engaged in EEO activity. S-1 said that he knew Complainant was disappointed about the recent GS-13 supervisory selection and he asked if Complainant was involved in some manner. Complainant affirmed that it was him and S-1 claims that "they both agreed to limit discussion of the issue." According to S-1, although he agreed with limiting the conversation, he did ask Complainant, "why now?" Complainant, he stated, indicated that there was a short timeframe for contacting an EEO counselor.
S-1 did not recall telling Complainant that "he should not have done it," but he did recall making the comment about "pulling a trigger." S-1 referred the investigator to a summary of his conversation with the EEO Counselor contained in the EEO Counselor's Report for the context of this comment.2 In the report, S-1 maintained that after Complainant indicated that he did not want to hurt anyone, but was doing it for his family, S-1 stated that he told Complainant that his initial thought had been that Complainant had "pulled the trigger to soon," but that he now understood why Complainant had to move forward as he did.
S-1 did not recall telling Complainant that he should not have filed, nor did he recall saying, "this will only make everyone mad and no one will win, if this continues." S-1 recalled, however, acknowledging that the EEO process was probably not "the most enjoyable path for anyone involved." He further attested that he did not express anger toward Complainant.
S-1 recalled telling Complainant that if rumors of changes in management occurred and he had a good evaluation in hand, the time would be ripe for him to have another conversation with senior management about a technical GS-13 position in their center. S-1 stated that he "empathized with Complainant," and maintained that he wished him the best throughout the process and that regardless of the outcome, he would follow through with his promise to discuss the potential GS-13 with management. S-1 pointed out that he was not certain whether his conversation with Complainant occurred prior to or after his conversation with the EEO Investigator, and it was not evident until October 30, 2013, that he was named as having contributed to the alleged discriminatory actions. He "averred" that he did not make any other statements.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency acknowledged that claims 6 and 7 were not investigated because they had been dismissed as being untimely. The decision concluded that Complainant did not establish discrimination with respect to the remainder of his claims.
CONTENTIONS ON APPEAL
On appeal, Complainant raises no new or additional arguments of fact or law. Complainant contends that the ROI supports his contentions of discrimination based on age, sex, reprisal and a hostile work environment. Complainant contends that he was more experienced than the person selected for the GS-13 Supervisory Hydrologist position and that the Agency's non-selection of him ignored his long record of accomplishments as a Hydrologist.
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
We note that the Commission has the discretion to review only those issues specifically raised in an appeal. Because complainant does not specifically contest the dismissal of claims 6 and 7 on the grounds of untimeliness, these issues will not be addressed in this decision. See EEOC Management Directive for 29 C.F.R. Part 1614, (MD-110), Chap. 9, § IV.A. (Aug. 5, 2015) ("Although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion to focus only on those issues specifically raised on appeal.").
Disparate Treatment
To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially 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 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 804 n.14. 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). To ultimately prevail, a 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, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Assuming that Complainant established a prima facie case of discrimination based on sex, age, and reprisal for engaging in previous EEO activity, we find that the Agency provided legitimate non-discriminatory reasons for its selection decision and for Complainant's receipt of the LOW. With respect to Complainant's non-selection (claims 1 and 2), the Agency maintained that C-1 was more qualified for the position than Complainant. Likewise, the Agency indicated that Complainant received the LOW because he failed to follow instructions about a project, ceased communication with his supervisor, and took the project in a different direction than that which was agreed upon by the team.
Once the Agency articulates legitimate, non-discriminatory reasons for its actions, the burden reverts to Complainant to show that those reasons are a pretext for discrimination. Complainant has not carried this burden. The evidence presented by the Agency shows that Complainant was unable to establish that he was clearly more qualified for the position than C-1. C-1 was qualified for the position and possessed superior performance ratings, while the Complainant had both positive and negative performance ratings during his career, including the FY 2013 "Fully Successful" rating as a Hydrologist, GS-1315-12. Moreover, C-1 had supervisory experience. Like Complainant, C-1 was male. His age was 45 while Complainant was 51. We do not find such a great discrepancy that age discrimination would become a likely motive. Likewise, we find no persuasive evidence that Complainant's prior EEO activity played a role here.
Although Complainant gave his opinion about the possibly negative motives of present and past supervisors and claimed that he was "promised" the position, we find that, at best, the evidence shows that some supervisors did highly regard his job performance, but others did not. Also, Complainant did not produce evidence of a promise to select him for the position beyond his own articulation. We also find no persuasive evidence that Complainant was told to withdraw his application, not to apply for a position, or that the position belonged to the Selectee in August 2013 (claims 3, 4, and 5). We do note, however, that if these allegations occurred exactly as alleged by Complainant, there is no persuasive evidence in the record that they took place for discriminatory reasons.
As Complainant did not request a hearing, we do not have the benefit of an Administrative Judge's credibility determinations after a hearing; 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 Complainant has proven by a preponderance of the evidence that the reasons asserted by the Agency are a pretext for discrimination. Accordingly, we find that Complainant has failed to demonstrate that he was not selected based upon discriminatory animus, claims 1 and 2, nor did he establish discrimination with respect to claims 3, 4, and 5.
Furthermore, we find no evidence that Complainant's sex, age or prior EEO activity played a role with regard to the issuance of the LOW, claim 9. We note that employers have broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by a reviewing authority absent evidence of unlawful motivation. Burdine, 450 U.S. 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997).
Harassment
Regarding Complainant's hostile work environment claim, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that claims 1 - 5 and 9 were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
Reprisal
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 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).
Here, we find that the actions of S-1 were discriminatory based on reprisal. Even if we assume that S-1's version of these events was 100% accurate, we would still find that he sought to interfere with Complainant's EEO activity. Complainant engaged in protected EEO activity, i.e., he contacted an EEO counselor and initiated pre-complaint activity. S-1 was aware of that activity and contacted Complainant. S-1 stated "that the email about a pre-EEO complaint was weighing on his mind. S-1 acknowledged asking Complainant why he had filed "now." S-1 recalled stating that the EEO process was probably not "the most enjoyable path for anyone involved." He also appeared to offered Complainant an incentive for withdrawing from the EEO process, by telling him that, if rumors of changes in management occurred and he had a good evaluation in hand, he, S-1, would have another conversation with senior management about a technical GS-13 position. This is not inconsistent with Complainant's testimony that he was told that (1) he should not have engaged in EEO activity; and (2) his work had been outstanding and maybe in six months they could try to get him a GS-13 position. Likewise, we note Complainant's testimony that he was told: (1) he should not have filed; and (2) this will only make everyone mad and no one will win. This is not inconsistent with S-1's testimony that he told Complainant, during a conversation that he described as, honest and heartfelt, that the EEO process was probably not "the most enjoyable path for anyone involved." He also admitted telling Complainant that he pulled the trigger to soon by engaging in EEO activity.
The conversation between Complainant and S-1 occurred only because Complainant engaged in protected EEO activity. We find that S-1 engaged in conduct that was designed to intimidate and/or interfere with Complainant's EEO activity. We further find that S-1 comments would be reasonably likely to deter an employee from exercising their rights under the EEO statutes, and that the actions and comments by S-1 were clearly in violation of the anti-retaliation provisions of our regulations.3
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency's final decision. We find that the Agency properly found no discrimination regarding claims 1, 2, 3, 4, and 5, and that it properly dismissed claims 6 and 7. We further AFFIRM the Agency's finding that Complainant was not subjected to a hostile work environment. Complainant' however, did establish that he was discriminated against with regard to his claim that his supervisor subjected him to retaliation with he spoke to him about his EEO activity. We REMAND this matter for further processing in accordance 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 him 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 S-1 regarding his 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 S-1. 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 Missouri Water Science Center facility in Rolla, Missouri 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)), he 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 (T0610)
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 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 (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 signature
Carlton M. Hadden, Director
Office of Federal Operations
_8/16/17_________________
Date
2 S-1's comments to the EEO Counselor were incorporated into his sworn affidavit to the investigator.
3 Complainant requested that the Commission also consider an alleged "second act of reprisal" concerning management's criticism of an ongoing project. Complainant, however, is advised that he needs to contact an EEO counselor about this matter if he has not done so already and that it will not be considered as part of the current case.
------------------------------------------------------------
------------------------------------------------------------
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"Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997)",
"Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000)",
"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)",
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372 | https://www.eeoc.gov/sites/default/files/decisions/2024_05_22/2023004925.pdf | 2023004925.pdf | PDF | application/pdf | 23,605 | March 18, 2024 | Summary not available - document structure not recognized. | , or by certified mail addressed to 131 M Stre et, 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 Co mmission 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 admini strative processing of your
complaint. However, if you wish to fil e 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 th e 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, c osts, or security to do so, you may
request permission from the cou rt 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 th e 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 18, 2024
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373 | https://www.eeoc.gov/sites/default/files/decisions/2022_07_20/2022001051.pdf | 2022001051.pdf | PDF | application/pdf | 23,883 | Nathan S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. | October 29, 2021 | Appeal Number: 2022001051
Background:
At the time of events giving rise to this complaint, Complainant was a former Agency employee ,
having worked as a Distribution Window Clerk, PS -5, at the Agency’ s Rontoul Post Office in
Rontoul, Illinois. On October 12, 2021, Complainant filed a f ormal EEO c omplaint alleging discrimination by the
Agency on the bases of sex (male) race (Black/African -American), disability ( regarded as
disabled, brain tumor) and reprisal for prior protecte d EEO activity
2 when:
1 This case has been randomly assigned a pseudonym which will replac e Complainant’s na me
when the decision is publishe d to non- parties and the Commission’s website.
2 Complainant ide ntifies A gency Case No. 4L00298 as his prior EEO activity , which concerns a
settlement agreement he entered into with the Agency on February 17, 1989, but was the s ubject
of two of his more r ecent actions before the Commission. EEOC Appeal No s. 0120121085 (Jul .
On or about September 28, 2021, t he current Rantoul, IL, Postmaster refuses to
address Complainant ’s status on the eligibility ros ter, even though he was placed
on the reemployment eligibility roster years ago following his recovery from
psychosis.3
Based on the recor d, docume ntary evidence submitted by Complainant, and the EEO complaints
referenced in the Agency’ s dismissal , we ascertained the following facts:
On March 25, 1994, Complainant , who had been experiencing psychos is, w as terminated by the
Agency following a psychiatric evaluation. Complainant took numerous actions to obtain
reinstate ment to his former position including filing EEO complaints , without success. In
December 1998, the Agency placed Complainan t on a “reinsta tement ros ter” after he provided it
with evidence that his psy chiatric illne ss was a misdiagnos is, as his symptoms were caused by a
large, benign brain tumor . Complainant then presented the Agency with a July 8, 1999 letter
from his physician , stating that his psychosis was “resolv ed” once the tumor was sur gically
removed, and that Complainant could ret urn to work. Complaina nt, however, was denied when
he requested re instatement in April and September 1999. Complainant filed a new EEO
complaint (Agency Case No. 4J604002900), which the Agency dismis sed for fai lure to state a
claim pursuant to 29 C.F.R. § 1614.107(a)(1), reasoning that Com plainant already filed an EEO
complaint alleging that the Agency denied hi m reinstatement .
On July 19, 2000, the Comm ission reversed the Agency’s dismiss al, reasoning that
Complainant ’s placement on the reinstatement roster and medical evidence that his psychosis
would not return e stablished a change in cir cumstances.
4 Therefore, even though the Agency
already addressed reins tatement in Complainant’s prior EEO complaints , these instances
constituted new claims of di scrimination , and stated a claim pursuant to 29 C.F.R. §
1614.107(a)(1) . The Agency was ordered to investigate Complainant ’s complaint , and, per
Complainant ’s request , the matter w as subseq uently assigned to a n EEOC Administrative Judge
(“AJ”) for a hearing.
17, 2013) reconsideration denied 0520130628 (Jan. 16, 2014) (no breach found) and
0120160839 (May 24, 2016) reconsideration denied 0520160330 (Jul. 26, 2016) (claim that
settlement agr eement was fr audulent because Complainant was not issued an ID Badge
dismi ssed as untimely, and previ ously raised with the Commission, and in civil cour t).
3 Reframed based on Com plainant ’s formal EEO c omplaint, a s Agency ’s wor ding (“You were
terminated on March 24, 1994, and subsequently, you have not been permitted to re turn to
work .”) did not refle ct Complainant ’s allegation or the change in circumstances in 1999.
4 EEOC Appeal No . 0120002261 (Jul y 19, 2000) (Agency Cas e No. 4J 604002900) .
On August 4, 2003, the AJ issued a decision by summary judgm ent in fa vor of the Age ncy for
Agency Case No. 4J 604002900, after concluding that Complain ant was unable to establish , by a
preponderance of the evidence , that t he April and September 1999 deni als of reinsta tement were
motiv ated by discriminatory or retaliatory animus .5 The Agency issued a Final Decision
adopting the AJ ’s decision , which the Commission affirmed o n appeal .6 Compl ainant continued
pursuing reinstatement through the EEO and other processes.
In September 2021, Complainant initiated the instant complaint, after the current Rantoul,
Illinois Postmaster ( “PM”) failed to respond to a letter he sent on July 17, 2021, with th e subject,
“Return to D uty Request .” In the le tter, Complainant explained that du ring an EEO hearing in
2002, the former Rantoul Illinois PM “promised me my jo b back upon the next position opening
at the Rantoul Post Offi ce.” Among other things, Complainant pr ovides a November 28, 2001
letter from a district Manager of Human Resources, stating that “[o]n April 23, 2001, [the former
PM] responded to your request, notifying you that you were placed on a reemployment eligibility
roster, Please direct all futu re correspondence on this ma tter to [th e former PM]. ” Complainant
then asks for the status of the “p romises made during the hearing.”
The EEO Counse lor assigned to t he instant complaint sp oke with the current PM who explained
that he became PM in 2011, around the same time the former PM, who Complai nant recall s from
the 2002 hearing , retired. The c urrent PM states that he has no record of Complainant ’s case,
and that he forwards Complainant ’s inquiries , which he has occasionally received over the years,
to Labor Relations or Human Resources.
The Ag ency , reasoning that Comp lainant was once again raising the same claim as he had in
prior EEO complaints, dismissed Complainant ’s complaint pursuant to 29 C.F.R. § §
1614.107(a)(1) for failure to state a claim , and 1614.107(a)( 9) for misu se of the EEO p rocess.
The instant appeal from Complainant followed.
Legal Analysis:
the Commission’s website.
2 Complainant ide ntifies A gency Case No. 4L00298 as his prior EEO activity , which concerns a
settlement agreement he entered into with the Agency on February 17, 1989, but was the s ubject
of two of his more r ecent actions before the Commission. EEOC Appeal No s. 0120121085 (Jul .
On or about September 28, 2021, t he current Rantoul, IL, Postmaster refuses to
address Complainant ’s status on the eligibility ros ter, even though he was placed
on the reemployment eligibility roster years ago following his recovery from
psychosis.3
Based on the recor d, docume ntary evidence submitted by Complainant, and the EEO complaints
referenced in the Agency’ s dismissal , we ascertained the following facts:
On March 25, 1994, Complainant , who had been experiencing psychos is, w as terminated by the
Agency following a psychiatric evaluation. Complainant took numerous actions to obtain
reinstate ment to his former position including filing EEO complaints , without success. In
December 1998, the Agency placed Complainan t on a “reinsta tement ros ter” after he provided it
with evidence that his psy chiatric illne ss was a misdiagnos is, as his symptoms were caused by a
large, benign brain tumor . Complainant then presented the Agency with a July 8, 1999 letter
from his physician , stating that his psychosis was “resolv ed” once the tumor was sur gically
removed, and that Complainant could ret urn to work. Complaina nt, however, was denied when
he requested re instatement in April and September 1999. Complainant filed a new EEO
complaint (Agency Case No. 4J604002900), which the Agency dismis sed for fai lure to state a
claim pursuant to 29 C.F.R. § 1614.107(a)(1), reasoning that Com plainant already filed an EEO
complaint alleging that the Agency denied hi m reinstatement .
On July 19, 2000, the Comm ission reversed the Agency’s dismiss al, reasoning that
Complainant ’s placement on the reinstatement roster and medical evidence that his psychosis
would not return e stablished a change in cir cumstances.
4 Therefore, even though the Agency
already addressed reins tatement in Complainant’s prior EEO complaints , these instances
constituted new claims of di scrimination , and stated a claim pursuant to 29 C.F.R. §
1614.107(a)(1) . The Agency was ordered to investigate Complainant ’s complaint , and, per
Complainant ’s request , the matter w as subseq uently assigned to a n EEOC Administrative Judge
(“AJ”) for a hearing.
17, 2013) reconsideration denied 0520130628 (Jan. 16, 2014) (no breach found) and
0120160839 (May 24, 2016) reconsideration denied 0520160330 (Jul. 26, 2016) (claim that
settlement agr eement was fr audulent because Complainant was not issued an ID Badge
dismi ssed as untimely, and previ ously raised with the Commission, and in civil cour t).
3 Reframed based on Com plainant ’s formal EEO c omplaint, a s Agency ’s wor ding (“You were
terminated on March 24, 1994, and subsequently, you have not been permitted to re turn to
work .”) did not refle ct Complainant ’s allegation or the change in circumstances in 1999.
4 EEOC Appeal No . 0120002261 (Jul y 19, 2000) (Agency Cas e No. 4J 604002900) .
On August 4, 2003, the AJ issued a decision by summary judgm ent in fa vor of the Age ncy for
Agency Case No. 4J 604002900, after concluding that Complain ant was unable to establish , by a
preponderance of the evidence , that t he April and September 1999 deni als of reinsta tement were
motiv ated by discriminatory or retaliatory animus .5 The Agency issued a Final Decision
adopting the AJ ’s decision , which the Commission affirmed o n appeal .6 Compl ainant continued
pursuing reinstatement through the EEO and other processes.
In September 2021, Complainant initiated the instant complaint, after the current Rantoul,
Illinois Postmaster ( “PM”) failed to respond to a letter he sent on July 17, 2021, with th e subject,
“Return to D uty Request .” In the le tter, Complainant explained that du ring an EEO hearing in
2002, the former Rantoul Illinois PM “promised me my jo b back upon the next position opening
at the Rantoul Post Offi ce.” Among other things, Complainant pr ovides a November 28, 2001
letter from a district Manager of Human Resources, stating that “[o]n April 23, 2001, [the former
PM] responded to your request, notifying you that you were placed on a reemployment eligibility
roster, Please direct all futu re correspondence on this ma tter to [th e former PM]. ” Complainant
then asks for the status of the “p romises made during the hearing.”
The EEO Counse lor assigned to t he instant complaint sp oke with the current PM who explained
that he became PM in 2011, around the same time the former PM, who Complai nant recall s from
the 2002 hearing , retired. The c urrent PM states that he has no record of Complainant ’s case,
and that he forwards Complainant ’s inquiries , which he has occasionally received over the years,
to Labor Relations or Human Resources.
The Ag ency , reasoning that Comp lainant was once again raising the same claim as he had in
prior EEO complaints, dismissed Complainant ’s complaint pursuant to 29 C.F.R. § §
1614.107(a)(1) for failure to state a claim , and 1614.107(a)( 9) for misu se of the EEO p rocess.
The instant appeal from Complainant followed.
ANALYSIS AND FINDINGS
An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that they have been discriminated against by that agency because of race, col or,
religion, sex, national origin, age or disabling condition. 29 C.F.R. §1614.103; §1614.106(a)
The Commission's Federal sector case precedent has long defined an “aggrieved e mployee” as
one who suffers a present harm or loss with respect to a term, con dition, 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) .
5 EEOC Hearing No. 210200106153X (Agency Case No. 4J 604002900) .
6 EEOC Appeal No . 0120035408 (Jun. 22, 2004) reconsideration denied, EEOC Request No.
0520041099 ( Aug. 25, 2004) (Agency Case No. 4J 604002900) .
Same C laim
The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that an agency shal l dismiss a
compla int that states the same claim that is pending before or has been decided by the agency or
Commission. To be dismissed a s the "same clai m," the present formal complaint and prior
complaint must have involved identical matters. The Commission has consistent ly held that in
order for a formal complaint to be dismissed as identical, the elements of the complaint must be
identic al to the elements of the prior complaint in time, place, in cident, and parties. See Jackson
v. Uni ted States Postal Serv. , EEO C Appeal No. 01955890 (Apr. 5, 1996).
Identify ing new e vidence to support a claim previously raised with the agency or t he
commission, or arguing a different theory of law , does not create a new claim. See Doleshal v.
Dep’t of Health & Hu man Servs. , EEOC Appeal No . 01A40020 (Jul . 29, 2004) , see also, e.g.
Complainant v. U nited States Postal Serv. , EEOC Appeal No. 0120132933 (Jan. 14, 2014)
(dismissal for stating the same claim proper where new evidence provided by the complainant
did not “ funda mentally change the n ature of the claim ” he raised in a previous complaint ).
The instant complaint involves ide ntical matters to those in Agency Case No. 4J604013418 ,
where Complainant alleged that he called the current PM to ask about his status on the
reinstatement list, an d the current PM would not discuss reinstatement wit h him.
7 Here,
Complainant is a gain recounting an instance where the current PM declined to answer his
inquiries about his status on the reinstatement list, only this time, the inquiry was by letter,
instead o f a phone call . Such a dis tinction does not “funda mentally change the nature of the
claim .” Complainant has not otherwise shown that a change in circumstances occurred since the
events giving rise to Agency Case No. 4J604013418 that would make the ins tant complaint a
new claim of discrimination .
On appeal, the Commission clarified the framing of Agency Case No. 4J604013418:
“Complainant is alleging that he has had not been gr anted re instatement by the Agency, which he
asserts should have happened dec ades ago.” In other words, while Com plainant is ostensibly
asking a bout his status on a list, hi s presence on t he list cannot be extricated from th e issue of
whether the Agency mus t allow for Complainant ’s reinstatement, which was addressed in
Agency Case Nos. 4J604002900 and 4J604003203.
8 Com plainant supports his appeal for the
instant complaint by submit ting evidence that he provided for EEOC appeal of Agency Case
Nos. 4J 604002900 and 4J604003203.
7 EEOC Appeal No . 2019002339 (Apr. 26, 2019) reconsideration denied EEOC Request No.
2019004171 ( Oct. 11, 2019) (Agency Case No. 4J 604013418).
8 EEOC Nos. 0120002261, 0120035408, & 0520041099 (Agency Case No . 4J604002900);
EEOC Appeal No. 0120034667 (Dec. 1 6, 2003) recons ideration denied, EEO C Re quest No.
0520040358 ( Feb. 5, 2004) (Agency Case No . 4J604003203) .
While we do not doubt the evidence, which includes documenta tion that Complainant is
medically fit for duty and, approximately 20 years ago , he was placed on a reinstatement list, it
does not support that the instant complaint alleges a new claim of discrimination .
We note that the Agency , as the prevailing party in Agency Case No. 4J604002900, is not
obligated under any EEO statute to notify Complainant if he is on a reinstatement list . Although
the former PM may have promised to place Complainant on the reinstatement list , he did not
memorialize that promise in w riting, and he no longer works for the Age ncy. We also remind
Complainant of our decision on his appeal of Agency Case No. 4J604012603, where
Complainant alleged, among other things, that the Ag ency subjected him to discrimination when
the Officer in Charg e at the Rantoul Illinois Post Office promise d to call him back with
information and never did.9 Complainant ’s prior employment and placement on the
reinstatement list is not su fficient to obligate the current PM to respond, e ven if Complainant
feels he “ has a right to know.” See 29 C.F.R. §1614.103.
Misuse /Abuse of the EEO Process
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. The 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 consolida ted complaints, should
be dismissed fo r 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 ab use or misuse the EEO process.
Numerous complaint filings alone are not a sufficient basis for determining that there has been
an abuse of the process . EEOC Management Di rective for 29 C.F.R. Part 1614 ( “EEO -MD-
110” ) (Aug. 5, 2015), at 5- 20. The Agency m ust show evidence that somehow in filing numerous
complaints a complainant specifically intended to m isuse the EEO proces s. Id. But multiple
filings on the same issues, lack of specificity in the allegations, and the filing of complaints on allegations pr eviously raised, may be considered in deciding whether a complainant has engaged
in a pattern of abuse of the EEO process. Id .
Here, t he Agency dismissed the instant comp laint for mis use of the EEO process under 29 C.F.R.
§ 1614.107(a)( 9), reasoning that Comp lainant already raise d the same issues in Agency Case
Nos. 4J604002900, 4J 604000603, 4J 604003203, 4J 604012603, and 4J 604013418. The Agency
emphasizes that none of thes e cases resulted in a finding of discrimination, the Commis sion
upheld its dismissal s on appeal, and denied Complainant ’s requests for reconsideration.
Upon review, we find that not only did the Agency fail to support a di smissal for misuse of the
EEO p rocess, its p roffered rationale was misleading .
9 EEOC Appeal No. 0120034725 (Nov. 25, 2003) reconsideration denied, EEOC Request No.
0520040317 (Jan. 15, 2004) (Agency Case No. 4J604012603).
The final decision is misleading by stating: “you were terminated on March 24, 1994 and
subsequently you have not be en permitted to return to work (“these matters were closed each
time [EEOC] upheld the Agency’s dismissal of your reinstatement complaints.”) The record
reflects that Complain ant was placed on the reinstatement list in 1998, and provided medical
evidence to contra dict the basis for his 1994 dismissal in 1999. The Agency also mis leadingly
states that the Commission ’s “decis ion on this issue is dated July 17, 2013 … [and] found t hat
the Agency need not reinstate [Complainant]. ” The de cision the Agency references concerned a
settlement ag reement it entered with Complainant in 1989.10
As for the cases the Agency identified in its d ismissal , Agency Case No s. 4J60400060311 and
4J60401260312 related to Complainant ’s quest for reins tatement to varying degrees but consisted
of different claims an d were dismissed on different procedural grounds . While Agency Case
Nos. 4J604002900, 4J604003203, a nd 4J604013418, as discussed, all concern the same issues as
the in stant complaint, Agency C ase Nos. 4J 604002900 and 4J604003203 were both filed in the
wake of a change in circumst ances. The Agency neglects to mention that its initial procedural
dismissal in Agency Case No . 4J604002900 was reversed b y the Commission and the matter was
reviewed b y an AJ . Agency Case No . 4J604003203 was partially dismissed as untimely, and
because the Commission determined that one claim, while worded differently, amounted to the
same issue raised in then-pending Agenc y Case No . 4J604002900. There is no evidence t hat by
raising issues about change in circum stances in two compl aints, Complainant, acting in a pro se
capacity , sought to misuse the EEO process.
Unlike the other referenced complaints, Agency Case No. 4J604013418, is nearly identical to the
instant co mplaint. Arguably, both complaints are an attempt by Complainant to use the EEO
process to force the current PM to respond to him directly .
10 EEOC Nos. 0120121085 & 0520130628 ( Agency Case No. 4L00298) .
11 EEOC Appeal No. 0120034725 (Nov. 25 2003) reconsideration denied, Request No.
0520040317 (Jan. 23, 2004) (failure to state a claim due to lack of standing where complainant
was not an employee or applicant for emp loyment , no remedy for allegations that he saw new
employees working at the agency who were outside his protected classes, and where the office r
in charge at the Rantoul Post Office pr omised to call him back with information and never did,
and he wa s denied a reasonable accommodation).
12 EEOC Appeal No. 0120031224 (Apr. 17, 2003) reconside ration denied , EEOC Request No.
0520030682 (Jun. 6, 2003) (affirming dismissal for untimely EEO co ntact , where complainant
alleged that agency refused to re -open his postal service exam based on a 10 point veterans
preference, and failed to respond when he requested his complete medical file pertainin g to his
employment with the agency ).
However, “the focus of the analysis is on the totality of the individual's claims, circumstances,
and intentions. ” Jeffery J. v. Dep’t of the Navy , EEOC Appeal No . 2020004860 (Dec. 2, 2020)
(agency argument that a complaint is identical or “similar ” to the complainant ’s prior complaints ,
which did not result in a discriminatio n finding, is insufficient to support dismissal for misus e of
process) , see also, Kenyatta S. v. E nviron. Protection Agency, EEOC Appeal No. 2019003653
(Nov. 8, 2019) (concluding no m isuse of EEO pr ocess occurred despite the complainant ’s
numerous EEO compl aints, where “ a fair reading of th e complete record reflects that
Complainant seems to genuinely b elieve that she is a victim of discrimination and that she will
eventually remedy her situation through the EEO complaint process ”). Here, the totality of
Complainant ’s claims, circumstances, and intentions indicate that Complainant believed he was
subjec ted to discrimination by the Agency, and that he could still obtain a remed y through the
EEO process. Dismissal for misuse of the EEO process, pursuant to 29 C.F.R. §1614.107(a)( 9)
is improper.
However, for Complainant ’s clarification , we emphasize and reiterate that the AJ ’s August 4,
2003 finding , adopted by the Agency and affirmed by this Commission, that for Agency C ase
No. 4J604002900, he did not prove , by a preponderance of the evidence , that the denial of
reinstatement was motivated by discrimination cannot be reliti gated. As with his prior EEO
complaints alleging discrimination based on the same underlying issue as Agency C ase No.
4J604002900, this co mplaint was properly dismissed for failure to state a claim pursuant to 29
C.F.R. §1614.107(a)(1) . | Nathan S.,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Field Areas and Regions),
Agency.
Appeal No. 2022001051
Agency No. 4J604019621
DECISION
Complainant timely appealed to the Equal Employment Opportunity Commission (“EEOC” or
“Commission”), from the A gency ’s October 29, 2021 dismissal of his complaint of unlawful
employment discrimination in violation of Ti tle 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 a former Agency employee ,
having worked as a Distribution Window Clerk, PS -5, at the Agency’ s Rontoul Post Office in
Rontoul, Illinois. On October 12, 2021, Complainant filed a f ormal EEO c omplaint alleging discrimination by the
Agency on the bases of sex (male) race (Black/African -American), disability ( regarded as
disabled, brain tumor) and reprisal for prior protecte d EEO activity
2 when:
1 This case has been randomly assigned a pseudonym which will replac e Complainant’s na me
when the decision is publishe d to non- parties and the Commission’s website.
2 Complainant ide ntifies A gency Case No. 4L00298 as his prior EEO activity , which concerns a
settlement agreement he entered into with the Agency on February 17, 1989, but was the s ubject
of two of his more r ecent actions before the Commission. EEOC Appeal No s. 0120121085 (Jul .
On or about September 28, 2021, t he current Rantoul, IL, Postmaster refuses to
address Complainant ’s status on the eligibility ros ter, even though he was placed
on the reemployment eligibility roster years ago following his recovery from
psychosis.3
Based on the recor d, docume ntary evidence submitted by Complainant, and the EEO complaints
referenced in the Agency’ s dismissal , we ascertained the following facts:
On March 25, 1994, Complainant , who had been experiencing psychos is, w as terminated by the
Agency following a psychiatric evaluation. Complainant took numerous actions to obtain
reinstate ment to his former position including filing EEO complaints , without success. In
December 1998, the Agency placed Complainan t on a “reinsta tement ros ter” after he provided it
with evidence that his psy chiatric illne ss was a misdiagnos is, as his symptoms were caused by a
large, benign brain tumor . Complainant then presented the Agency with a July 8, 1999 letter
from his physician , stating that his psychosis was “resolv ed” once the tumor was sur gically
removed, and that Complainant could ret urn to work. Complaina nt, however, was denied when
he requested re instatement in April and September 1999. Complainant filed a new EEO
complaint (Agency Case No. 4J604002900), which the Agency dismis sed for fai lure to state a
claim pursuant to 29 C.F.R. § 1614.107(a)(1), reasoning that Com plainant already filed an EEO
complaint alleging that the Agency denied hi m reinstatement .
On July 19, 2000, the Comm ission reversed the Agency’s dismiss al, reasoning that
Complainant ’s placement on the reinstatement roster and medical evidence that his psychosis
would not return e stablished a change in cir cumstances.
4 Therefore, even though the Agency
already addressed reins tatement in Complainant’s prior EEO complaints , these instances
constituted new claims of di scrimination , and stated a claim pursuant to 29 C.F.R. §
1614.107(a)(1) . The Agency was ordered to investigate Complainant ’s complaint , and, per
Complainant ’s request , the matter w as subseq uently assigned to a n EEOC Administrative Judge
(“AJ”) for a hearing.
17, 2013) reconsideration denied 0520130628 (Jan. 16, 2014) (no breach found) and
0120160839 (May 24, 2016) reconsideration denied 0520160330 (Jul. 26, 2016) (claim that
settlement agr eement was fr audulent because Complainant was not issued an ID Badge
dismi ssed as untimely, and previ ously raised with the Commission, and in civil cour t).
3 Reframed based on Com plainant ’s formal EEO c omplaint, a s Agency ’s wor ding (“You were
terminated on March 24, 1994, and subsequently, you have not been permitted to re turn to
work .”) did not refle ct Complainant ’s allegation or the change in circumstances in 1999.
4 EEOC Appeal No . 0120002261 (Jul y 19, 2000) (Agency Cas e No. 4J 604002900) .
On August 4, 2003, the AJ issued a decision by summary judgm ent in fa vor of the Age ncy for
Agency Case No. 4J 604002900, after concluding that Complain ant was unable to establish , by a
preponderance of the evidence , that t he April and September 1999 deni als of reinsta tement were
motiv ated by discriminatory or retaliatory animus .5 The Agency issued a Final Decision
adopting the AJ ’s decision , which the Commission affirmed o n appeal .6 Compl ainant continued
pursuing reinstatement through the EEO and other processes.
In September 2021, Complainant initiated the instant complaint, after the current Rantoul,
Illinois Postmaster ( “PM”) failed to respond to a letter he sent on July 17, 2021, with th e subject,
“Return to D uty Request .” In the le tter, Complainant explained that du ring an EEO hearing in
2002, the former Rantoul Illinois PM “promised me my jo b back upon the next position opening
at the Rantoul Post Offi ce.” Among other things, Complainant pr ovides a November 28, 2001
letter from a district Manager of Human Resources, stating that “[o]n April 23, 2001, [the former
PM] responded to your request, notifying you that you were placed on a reemployment eligibility
roster, Please direct all futu re correspondence on this ma tter to [th e former PM]. ” Complainant
then asks for the status of the “p romises made during the hearing.”
The EEO Counse lor assigned to t he instant complaint sp oke with the current PM who explained
that he became PM in 2011, around the same time the former PM, who Complai nant recall s from
the 2002 hearing , retired. The c urrent PM states that he has no record of Complainant ’s case,
and that he forwards Complainant ’s inquiries , which he has occasionally received over the years,
to Labor Relations or Human Resources.
The Ag ency , reasoning that Comp lainant was once again raising the same claim as he had in
prior EEO complaints, dismissed Complainant ’s complaint pursuant to 29 C.F.R. § §
1614.107(a)(1) for failure to state a claim , and 1614.107(a)( 9) for misu se of the EEO p rocess.
The instant appeal from Complainant followed.
ANALYSIS AND FINDINGS
An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that they have been discriminated against by that agency because of race, col or,
religion, sex, national origin, age or disabling condition. 29 C.F.R. §1614.103; §1614.106(a)
The Commission's Federal sector case precedent has long defined an “aggrieved e mployee” as
one who suffers a present harm or loss with respect to a term, con dition, 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) .
5 EEOC Hearing No. 210200106153X (Agency Case No. 4J 604002900) .
6 EEOC Appeal No . 0120035408 (Jun. 22, 2004) reconsideration denied, EEOC Request No.
0520041099 ( Aug. 25, 2004) (Agency Case No. 4J 604002900) .
Same C laim
The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that an agency shal l dismiss a
compla int that states the same claim that is pending before or has been decided by the agency or
Commission. To be dismissed a s the "same clai m," the present formal complaint and prior
complaint must have involved identical matters. The Commission has consistent ly held that in
order for a formal complaint to be dismissed as identical, the elements of the complaint must be
identic al to the elements of the prior complaint in time, place, in cident, and parties. See Jackson
v. Uni ted States Postal Serv. , EEO C Appeal No. 01955890 (Apr. 5, 1996).
Identify ing new e vidence to support a claim previously raised with the agency or t he
commission, or arguing a different theory of law , does not create a new claim. See Doleshal v.
Dep’t of Health & Hu man Servs. , EEOC Appeal No . 01A40020 (Jul . 29, 2004) , see also, e.g.
Complainant v. U nited States Postal Serv. , EEOC Appeal No. 0120132933 (Jan. 14, 2014)
(dismissal for stating the same claim proper where new evidence provided by the complainant
did not “ funda mentally change the n ature of the claim ” he raised in a previous complaint ).
The instant complaint involves ide ntical matters to those in Agency Case No. 4J604013418 ,
where Complainant alleged that he called the current PM to ask about his status on the
reinstatement list, an d the current PM would not discuss reinstatement wit h him.
7 Here,
Complainant is a gain recounting an instance where the current PM declined to answer his
inquiries about his status on the reinstatement list, only this time, the inquiry was by letter,
instead o f a phone call . Such a dis tinction does not “funda mentally change the nature of the
claim .” Complainant has not otherwise shown that a change in circumstances occurred since the
events giving rise to Agency Case No. 4J604013418 that would make the ins tant complaint a
new claim of discrimination .
On appeal, the Commission clarified the framing of Agency Case No. 4J604013418:
“Complainant is alleging that he has had not been gr anted re instatement by the Agency, which he
asserts should have happened dec ades ago.” In other words, while Com plainant is ostensibly
asking a bout his status on a list, hi s presence on t he list cannot be extricated from th e issue of
whether the Agency mus t allow for Complainant ’s reinstatement, which was addressed in
Agency Case Nos. 4J604002900 and 4J604003203.
8 Com plainant supports his appeal for the
instant complaint by submit ting evidence that he provided for EEOC appeal of Agency Case
Nos. 4J 604002900 and 4J604003203.
7 EEOC Appeal No . 2019002339 (Apr. 26, 2019) reconsideration denied EEOC Request No.
2019004171 ( Oct. 11, 2019) (Agency Case No. 4J 604013418).
8 EEOC Nos. 0120002261, 0120035408, & 0520041099 (Agency Case No . 4J604002900);
EEOC Appeal No. 0120034667 (Dec. 1 6, 2003) recons ideration denied, EEO C Re quest No.
0520040358 ( Feb. 5, 2004) (Agency Case No . 4J604003203) .
While we do not doubt the evidence, which includes documenta tion that Complainant is
medically fit for duty and, approximately 20 years ago , he was placed on a reinstatement list, it
does not support that the instant complaint alleges a new claim of discrimination .
We note that the Agency , as the prevailing party in Agency Case No. 4J604002900, is not
obligated under any EEO statute to notify Complainant if he is on a reinstatement list . Although
the former PM may have promised to place Complainant on the reinstatement list , he did not
memorialize that promise in w riting, and he no longer works for the Age ncy. We also remind
Complainant of our decision on his appeal of Agency Case No. 4J604012603, where
Complainant alleged, among other things, that the Ag ency subjected him to discrimination when
the Officer in Charg e at the Rantoul Illinois Post Office promise d to call him back with
information and never did.9 Complainant ’s prior employment and placement on the
reinstatement list is not su fficient to obligate the current PM to respond, e ven if Complainant
feels he “ has a right to know.” See 29 C.F.R. §1614.103.
Misuse /Abuse of the EEO Process
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. The 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 consolida ted complaints, should
be dismissed fo r 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 ab use or misuse the EEO process.
Numerous complaint filings alone are not a sufficient basis for determining that there has been
an abuse of the process . EEOC Management Di rective for 29 C.F.R. Part 1614 ( “EEO -MD-
110” ) (Aug. 5, 2015), at 5- 20. The Agency m ust show evidence that somehow in filing numerous
complaints a complainant specifically intended to m isuse the EEO proces s. Id. But multiple
filings on the same issues, lack of specificity in the allegations, and the filing of complaints on allegations pr eviously raised, may be considered in deciding whether a complainant has engaged
in a pattern of abuse of the EEO process. Id .
Here, t he Agency dismissed the instant comp laint for mis use of the EEO process under 29 C.F.R.
§ 1614.107(a)( 9), reasoning that Comp lainant already raise d the same issues in Agency Case
Nos. 4J604002900, 4J 604000603, 4J 604003203, 4J 604012603, and 4J 604013418. The Agency
emphasizes that none of thes e cases resulted in a finding of discrimination, the Commis sion
upheld its dismissal s on appeal, and denied Complainant ’s requests for reconsideration.
Upon review, we find that not only did the Agency fail to support a di smissal for misuse of the
EEO p rocess, its p roffered rationale was misleading .
9 EEOC Appeal No. 0120034725 (Nov. 25, 2003) reconsideration denied, EEOC Request No.
0520040317 (Jan. 15, 2004) (Agency Case No. 4J604012603).
The final decision is misleading by stating: “you were terminated on March 24, 1994 and
subsequently you have not be en permitted to return to work (“these matters were closed each
time [EEOC] upheld the Agency’s dismissal of your reinstatement complaints.”) The record
reflects that Complain ant was placed on the reinstatement list in 1998, and provided medical
evidence to contra dict the basis for his 1994 dismissal in 1999. The Agency also mis leadingly
states that the Commission ’s “decis ion on this issue is dated July 17, 2013 … [and] found t hat
the Agency need not reinstate [Complainant]. ” The de cision the Agency references concerned a
settlement ag reement it entered with Complainant in 1989.10
As for the cases the Agency identified in its d ismissal , Agency Case No s. 4J60400060311 and
4J60401260312 related to Complainant ’s quest for reins tatement to varying degrees but consisted
of different claims an d were dismissed on different procedural grounds . While Agency Case
Nos. 4J604002900, 4J604003203, a nd 4J604013418, as discussed, all concern the same issues as
the in stant complaint, Agency C ase Nos. 4J 604002900 and 4J604003203 were both filed in the
wake of a change in circumst ances. The Agency neglects to mention that its initial procedural
dismissal in Agency Case No . 4J604002900 was reversed b y the Commission and the matter was
reviewed b y an AJ . Agency Case No . 4J604003203 was partially dismissed as untimely, and
because the Commission determined that one claim, while worded differently, amounted to the
same issue raised in then-pending Agenc y Case No . 4J604002900. There is no evidence t hat by
raising issues about change in circum stances in two compl aints, Complainant, acting in a pro se
capacity , sought to misuse the EEO process.
Unlike the other referenced complaints, Agency Case No. 4J604013418, is nearly identical to the
instant co mplaint. Arguably, both complaints are an attempt by Complainant to use the EEO
process to force the current PM to respond to him directly .
10 EEOC Nos. 0120121085 & 0520130628 ( Agency Case No. 4L00298) .
11 EEOC Appeal No. 0120034725 (Nov. 25 2003) reconsideration denied, Request No.
0520040317 (Jan. 23, 2004) (failure to state a claim due to lack of standing where complainant
was not an employee or applicant for emp loyment , no remedy for allegations that he saw new
employees working at the agency who were outside his protected classes, and where the office r
in charge at the Rantoul Post Office pr omised to call him back with information and never did,
and he wa s denied a reasonable accommodation).
12 EEOC Appeal No. 0120031224 (Apr. 17, 2003) reconside ration denied , EEOC Request No.
0520030682 (Jun. 6, 2003) (affirming dismissal for untimely EEO co ntact , where complainant
alleged that agency refused to re -open his postal service exam based on a 10 point veterans
preference, and failed to respond when he requested his complete medical file pertainin g to his
employment with the agency ).
However, “the focus of the analysis is on the totality of the individual's claims, circumstances,
and intentions. ” Jeffery J. v. Dep’t of the Navy , EEOC Appeal No . 2020004860 (Dec. 2, 2020)
(agency argument that a complaint is identical or “similar ” to the complainant ’s prior complaints ,
which did not result in a discriminatio n finding, is insufficient to support dismissal for misus e of
process) , see also, Kenyatta S. v. E nviron. Protection Agency, EEOC Appeal No. 2019003653
(Nov. 8, 2019) (concluding no m isuse of EEO pr ocess occurred despite the complainant ’s
numerous EEO compl aints, where “ a fair reading of th e complete record reflects that
Complainant seems to genuinely b elieve that she is a victim of discrimination and that she will
eventually remedy her situation through the EEO complaint process ”). Here, the totality of
Complainant ’s claims, circumstances, and intentions indicate that Complainant believed he was
subjec ted to discrimination by the Agency, and that he could still obtain a remed y through the
EEO process. Dismissal for misuse of the EEO process, pursuant to 29 C.F.R. §1614.107(a)( 9)
is improper.
However, for Complainant ’s clarification , we emphasize and reiterate that the AJ ’s August 4,
2003 finding , adopted by the Agency and affirmed by this Commission, that for Agency C ase
No. 4J604002900, he did not prove , by a preponderance of the evidence , that the denial of
reinstatement was motivated by discrimination cannot be reliti gated. As with his prior EEO
complaints alleging discrimination based on the same underlying issue as Agency C ase No.
4J604002900, this co mplaint was properly dismissed for failure to state a claim pursuant to 29
C.F.R. §1614.107(a)(1) .
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing Complai nant's complaint for
failure to state a c laim pursuant to 29 C.F.R. §1614.107(a)(1) .
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0920)
The Commission may, in its disc retion, rec onsider t his 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 errone ous interpretation of material fact or
law; or
2. The appellate decision will have a substantial impact on the policie s, practices, or
operations of the agency.
Requests for reconsideration must be filed with EEOC’s Office o f Federal Operations (OFO)
within thirty (30) calendar days of receip t of this d ecision. If the party requesting
reconsideration elects to file a st atement or brief in support of the request , that statement or
brief must be filed together with the request for reconsideration .
A part y shall have twenty (20) calendar days f rom 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 Employ ment Opportuni ty Management Di rective for 29 C.F.R. Part 16 14 (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 Pub lic Portal, w hich can be found at
https://pub licportal.eeoc.gov/Portal/Login.aspx
Alternatively, Complainant can submit his or her request and arguments to the Director, Office
of Federal Op erations, 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 Str eet, NE,
Washing ton, DC 20507. In the absence of a legibl e 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 submi tted in digital format via the EEOC’s
Federal Sec tor 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 ser vice on the othe r party,
unless Complainant files his or h er 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
reconsiderati on as untimely, unless extenuating circumstances prevented the timely filing of the
request. Any supporti ng documentation must be submitted together with the request for
reconsideration. The Commission will consider requests for reconsideration filed aft er 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 Sta tes District Court within
ninety (90) calendar days from the date tha t you receive this decision. If you file a civil action,
you must name as the defendant i n the complaint the person who is the official Agency head or
department head, identif ying that p erson by his or her full name and official title. Failure to do
so m ay result in the dismissal of your case in court. “Agency” or “department” means the
national organization, and not the local office, f acility or department in which you work. If you
file a request to reco nsider 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 th e civil action without paying these fees o r
costs. Similarly, if you cannot af ford an attor ney to represent you in the civil action, you may
request the court to appoint an attorney for y ou. You must submit the requests for waiver of
court costs or appoint ment of an attorney directly to the court, not the Commission.
The court has t he sole disc retion to grant or deny these types of request s. Such requests do not
alter the tim e limits for f iling a civil actio n (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 gnature
Carlton M. Hadden, Director
Office of Feder al Operations
May 2, 2022
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374 | https://www.eeoc.gov/sites/default/files/decisions/2021_08_16/2021000252.pdf | 2021000252.pdf | PDF | application/pdf | 24,545 | Billy L,1 Complainant, v. Christopher C. Miller, Acting Secretary, Department of Defense (Defense Intelligence Agency), Agency. | June 1, 2015 | Appeal Number: 2019000214 | Billy L,1
Complainant,
v.
Christopher C. Miller,
Acting Secretary,
Department of Defense
(Defense Intelligence Agency),
Agency.
Request No. 2021000252
Appeal No. 2019000214
Hearing No s. 510-2017-00132X and 510-2017-00354X
Agency No s. DIA -2015-00068 and DIA-2016-00076
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Billy L. v. Dep’t of Defense , EEOC Appeal No.
2019000214 (Sept . 16, 2020). 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 m aterial 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).
During the period at issue, Complainant worked as a Geo- Political Analyst, GG- 13, at the
Agency’s Central Asia Division at CENTCOM in MacDill AFB, Florida.
On June 1, 2015 and November 17, 2016, Complainant filed two formal EEO complaints, with multiple amendments , claiming that he was subjected to an ongoing hostile work environment
based on disability (epilepsy), and in reprisal for prior protected EEO activity (previous EEO
complaint, DIA -2014- 00029, filed on May 3, 2014).
1. Complaint DIA -2015 -00068
Complainant claimed that he was subjected to discrimination and a hostil e work environment
based on physical and perceived mental disability (epilepsy) and in reprisal for prior protected EEO activity when:
a. on October 17, 2014, the Chief (CHIEF) , Employee Management Relations (EMR)
Branch, Office of Human Resources (ORR), the Senior Defense Intelligence Analyst (CCJ2 -J) (SDI), and the Vice J2 US Central Command (VICE), denied Complainant’s
request for a non -12 (unbiased) deciding official to officiate the Office of Human
Resources (ORR) grievance Complainant filed regarding his October 16, 2014
suspension;
b. on November 24, 2014, SDI recused himself as the deciding official for Complainant’s
OHR grievance and the VICE was appointed as the new deciding official. Complainant
felt this was done to cover up OHR wrong -doing and failures of Complainant’s previous
leadership;
c. from December 15, 2014, the ORR Employee Management Relations Specialist (EMR),
failed to respond to Complainant’s consolidated questions re lated to his October 16, 2014
suspension, the subsequent OHR gr ievance Complainant filed and OHR violations of
DIA Instructions;
d. between December 29, 2014 and February 24, 2015, the VICE claimed he spoke to someone from the Alternative Dispute Resolution (ADR) team, who made it clear that the
April 28 through May 2, 2014 ADR session Complainant was involved in would not
eliminate any pending personnel actions. However, this could (sic) conversation could
not have occurred because the individual at issue, the ADR facilitator, had retired;
e. in December 2014, the ADR facilitator, who had conducted the ADR session
Complainant participated in from April 28 to May 2, 2014, refused to speak with
Complainant, stating that this was against DIA Procedures for ADR sessions;
f. on February 24, 2015, Complainant received O HR’s decision on Complainant’s
grievance, via email from EMR, and signed by the VICE. The decision was one hundred and one days late and upheld Complainant’s 7- day suspension;
g. between February 12 and March 19, 2014, the Director OHR, (DIRECTOR) and the Deputy General Counsel (DGC), Office of General Counsel, refused to answer dozens of questions Complainant submitted as authorized by DIA Instruction 1426.002. They both claimed that all of Complainant’s questions had been answered, which was untrue;
h. on March 19, 2015, the EMR failed to respond to Compl ainant’s consolidated questions
related to Complainant’s October 16, 2014, the suspension, the subsequent OHR
grievance Complainant filed, and OHR violations of DIA Instructions;
i. from February 2013 to October 13, 2014, management, to include the SDI, the SIO, the (SI2), the former United States Central Command (U.S. CENTCOM) DIA Senior Representative (DSR), the Chief, Joint I ntelligence Center Central (JICCENT) Iran
Division, the JIOC Commander, and the VICE, failed to act on Complainant’s complaints of harassment and denied the fact that Complainant had a medical disability to support retaliation for making EEO complaints of medical discrimination;
j. on July 13, 2015, Complainant’s former supervisor, (S1) Supervisory Intelligence Officer, harassed Complainant at the bus stop behind USCENTCOM Headquarters;
k. on July 15, 2015, Complainant reported to the Joint Intelligence O perations Center
(JIOC) commanders and the DIA Director’s Executive Staff that Complainant continued to be harassed by S1, and they did not act to address it in accordance with the USCENTCOM JIOC Commander’s EEO/Diversity Policy Statement;
l. on October 27, 2015, Complainant became aware that from November 2014 to August 2015, S1, and the Supervisory Intelligence Officer, continued to document information against Complainant even though they are no longer Complainant’s supervisors;
m. on October 14, 2105, the DIA Assistant General Counsel, breached Complainant’s confidentiality when he revealed Complainant’s complete name to a third party while
undergoing the discovery process with the third party. Complainant insisted the following informatio n be included for clarification: This unauthorized disclosure is yet
another in a long series of errors committed by DIA personnel regarding actions pertaining to Complainant’s EEO complaints of medical discrimination, harassment, and subsequent retaliatio n by S1 and others;
n. based upon events beginning in September 2012, when Complainant returned to duty after hospitalization with epilepsy. An example of the errors included, an incident on March 19, 2015 when the DGC insisted all aspects of Complainant ’s suspension and
grievance were properly followed. The fact they have not , is extensively documented
throughout both EEO complaints ongoing since May 2014. This breach of confidentiality has added to the stress and humiliation Complainant has suffered throughout this now over three -year ordeal. These actions represent another aspect of
continued support for S1’s abusive management style, other USCENTCOM personnel condoning it, and subsequently retaliated against Complainant for his EEO complaint against them. This is compounded by other USCENTOM and DIA personnel involved in
Complainant’s EEO complaint continuing to deny any wrongdoing;
o. on or about October 27, 2015, Complainant became aware via the EEO discovery process
that on April 16, 2014, after her interview with the investigator regarding Complainant’s
previous EEO complaint, Agency Case No. DIA -2014- 00029, the Jt. Chief Iran Division
stayed after duty hours to write an email to DIA Office of Human Resources. This email contained a list of alleged offenses Complainant had committed;
p. on September 15, 2015, Complainant became aware that on or about May 30, 2014, S1 appointed the SIO, as the deciding official for the proposed suspension levied against Complainant that day by S1. This appointm ent was a conflict of interest and highlights
how the actions of Complainant’s former supervisory chain and other members of USCENTCOM J2 from early 2013 through May 30, 2014, were not in accordance with EEOC Management Directive 110, specifically Chapter 1, Section IV – Avoiding
Conflicts of Interest, and Chapter 3 – ADR for EEO Matters. Specifically, the SIO was
named the deciding official a few weeks after he was interviewed about Complainant’s EEO complainant against him;
q. on December 23, 2015, the DIA Office of General Counsel informed Complainant via email that his “recent letter addressed to the Director, DIA was referred to the Office of General Counsel for reply, as it discu sses a matter in litigation before the U.S. Equal
Opportunity Commission.” The fact this matter is in litigation before the EEOC is irrelevant, as per EEOC MD -110 “The EEOC encourages the resolution of complaints at
all times in the complaint process;”
r. from January 8, 2016 to February 5, 2016, the Commanding Officer, Joint Intelligence Center, U.S. Central Command (USCENTCOM), failed to follow his own EEO policy in
response to Complainant’s request for him to act on his EEO policy by acting to address Complainant’s EEO complaint. He replied to Complainant in his EEO polic y by acting
to address Complainant’s EEO complaint. He replied to Complainant in a February 1, 2016 email: “I discussed the matter with the DIA EEO Representative at US CENTCOM and she agrees with my assessment,” and “the matter has been taken out of my h ands-
should you have information to the contrary, please do not hesitate to notify me. I am always available to assist you.” He failed to act on this statement after Complainant informed him Complainant had information to the contrary, as follows: Per EE OC MD -
110 states, “The EEOC encourages the resolution of complaints at all times in the complaint process;”
s. on February 8, 2016, the DIA EEO representative at USCENTCOM Headquarters, would not provide a reference supporting what she advised the CAPT, c ausing him to conclude
acting on Complainant’s EEO complaint in accordance with his Command Policy is “out of his hands.” She stated, among other things, “Agency officials and employees involved in an EEO complaint are all considered participants in the E EO complaint process,” thus
their discussion was “private and confidential.”
t. as the CAPT is not an Agency employee, this justification does not apply to him.
Further, according to EEOC -MD-110 “The EEOC encourages the resoluti on of
complaints at all times in the complaint process.” Therefore, her guidance was incorrect, and CAPT Brookes does have the authority to act on Complainant’s case;
u. on or about September 30, 2014, S1 retaliated against Complainant for making an EEO of Performance Cycle (EPCA) dated 09/30/2014. Complainant’s comments follow each statement in the detail portion of this amendment, explaining each false and inaccurate statement. These false statements had an adverse impact on Complainant’s entire futur e
career, as any advanced schooling or advancement opportunities require submission of an individual’s last three evaluations;
v. from March 25 -31, 2016 the Lieutenant General, Director, DIA, did not acknowledge
Complainant’s registered mail and email app eals to him, on both JWIC (i.e. Top Secret)
and SIPRENT (i.e. Secret Computer Networks), of his Staff Offices’ and USCENTCOM personnel violating DIA and USCENTOM EEO policies. Complainant is certain his inaction was either due to OGC advising him that not hing could or should be done, or the
Director simply ignored his own EEO policy. On May 9, 2016, Complainant was informed by the DIA employee, that the DIA Director received his emails;
z. in March 2016, Complainant learned that on or after April 11, 2014, several managers approached the DIA Senior Representative (SR) to US Central Command and tried to have Complainant separated (i.e. fired) from DIA without valid cause. They tried to use Complainant’s disability as grounds to have him separated. This i s yet another in a series
of actions taken to retaliate against Complainant for making an EEO complaint against
these individuals in 2014. Further, these retaliatory actions were undertaken to cover up CENTCOM officials’ failure to act on Complainant’s numerous -written complaints of
now accused felon S1’s medical discrimination, harassment, and retaliation, violating both DIA and CENTCOM policy;
aa. on or about May 3, 2016, SF02 embellished a 3 -second encounter Complainant had with
him when Complainant ga ve him a personal letter with information about S1’s recent
arrest for sexual battery – custodial authority with victim 12 -17, which resulted in a
retaliatory summons to the DIA Office of Security for an interview. Complainant anticipated SF2 would take r etaliatory action against him, so he documented the
encounter, as did an eyewitness with impeccable character and credentials. A principal justification the manager used to result in this interview was “alleged medical issues [Complainant] reported in 2012 and may still be “receiving treatment and prescribed
medication as a result;”
bb. on May 4, 2016, and May 10, 2016, respectively, the DIA Senior Representative to
USCENTCOM, told Complainant two different reasons why he ordered Complainant to report to t he DIA Office of Security (DIA OOS) on Monday, May 9, 2016. Neither
reason was true or accurate, and he almost certainly acted upon SF2’s false account of
what transpired between he and Complainant on May 3, 2016. Not only did he not tell
Complainant the truth on either May 4 or May 10, he never asked Complainant for his
account of the May 3 interaction with SF2. The Chief’s actions taken upon SF2 and/or someone else’s recommendation is yet another series of actions undertaken to cover up CENTECOM offici al’s failure to act on Complainant’s numerous written complaints of
S1’s medical discrimination, harassment, and retaliation, violating both DIA and CENTCOM policy;
cc. on February 10, 2016, Complainant became aware that on Monday, April 14, 2014, Jt. Chief Iran Division was given the results of a Security Inquiry she initiated against
Complainant – Response Memo to Preliminary Inquiry into Possible Security Incident
#2014- 25 (RM) but never informed him of the results. The results indicated Complainant
was absolved of any wrongdoing. Has she shown Complainant the report, Complainant
would have another of many examples of inequitable treatment by her, S1, and others, for his numerous complaints of medical discrimination, harassment, and what eventually led
to retaliation.
2. on February 24, 2015, Complainant received ORR’s decision on his grievance, via email from the EMR, and signed by the VICE. The decision was one hundred and one days late and upheld his 7- day suspension.
In complaint DIA -2016- 0076, Complainant claimed that the Agency discriminated against him
and subjected him to a hostile work environment based on disability (epilepsy) and in reprisal for prior protected EEO activity when:
1(b). on or about May 3, 2016, the Captain betrayed Complainant’s trust by forwarding an
email Complainant sent him in confidence to the DIA Senior Representative to USCENTCOM. This resulted in ordering Complainant to report to the DIA Office of
Security regarding “two packets” he allegedly sent to DIA Headquarters “addressing
security concerns.:
1(c). on or about November 7, 2016, the Captain betrayed his trust when he forwarded an
email that the EEO Counselor sent him on November 7, 2016, to the DIA Senior
Representative to USCENTCOM, despite his request not to do so;
1(d). on or about November 8, 2016, the Captain claimed to have no authority to conduct
ADR to resolve his EEO complaints and conti nuously claimed to have no authority
over civilians, despite the fact that his EEO policy clearly stated that it covered all
JICCENT employees and all personnel which includes civilians;
1(f). on April 26, 2017, the Reasonable Accommodations (RA) Office had yet to process
Complainant’s March 15, 2017, request for an accommodation within the required 30-
business day time frame, despite it having his supervisor’s recommendation, and meeting all the requirements of the two applicable DIA Policies (DIAI 1020.002, RA
for Qualified Persons with Disabilities, and DIAD 5240.100, Insider Threat Program),
and the RA Office did not provide information indicating that his request had been processed despite Complainant’s five requests for information; and,
2. on May 9, 2017, Complainant was issued a denial of his request for a reasonable
accommodation by the Chief, Diversity Management Division.
After an investigation of the accepted claims ,
2 Complainant requested a hearing before an EEOC
Administrative Judge (AJ) for both complaints . Subsequently, the complaints were consolidated
even though each complaint was assi gned a separate EEOC hearing number. On June 28, 2018,
the AJ dismissed Complainant’s request for a hearing and remanded the complaints to the
Agency for further processing. On September 6, 2018, the Agency issued a consolidated final decision finding no discrimination. Complainant appealed.
The previous decision acknowledged that there was a thorough review of the record including
Complainant’s contentions on appeal including those that were not specifically addressed in the decision. For preliminary matters, the decision determined that the AJ’s dismissal of
Complainant’s hearing request was proper. Because Complainant did not comply with the AJ’s
instructions , it was well within the AJ’s discretion to dismiss Complainant’s hearing re quest.
The decision also determined that despite Complainant’s request for his complaints to be
adjudicated separately, consolidation of the formal complaints was appropriate , to prevent
fragmentation of his claims. The decision also dismissed claims 1a , 1b, 1c, 1d, 1e, 1f, 1g, 1h, 1n, 1o, 1p, 1q, 1r, 1t, 1v, and 2
in complaint DIA -2015- 00068 and claims 1d and 1f in complaint DIA -2016- 0076 for failure to
state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). T he decision found that these complaints
const ituted a collateral attack on several processes outside of the Commission’s jurisdiction.
The decision noted that Complainant was challenging the outcome of a grievance, suspension, complaints about Agency procedures and Agency responses to his questions , and complaints
about the EEO process, and therefore, Complainant should have raised these challenges within those separate processes itself. Regarding the merits, the decision found that the Agency articulated legitimate, non -
discriminatory reasons for its actions. The record reflect ed that management responded to
Complainant’s reports of disagreement and verbal arguments with his co- workers and
management counseled all co -workers on the issue, initiated an ADR session to address
Complainant’s concerns, and interviewed a witness present at a public incident Complainant reported to determine what happened. The record also indicated that Complainant did not
respond to S1’s questions about how he was doing , while standing at the bus stop, and S1
document ed the matter . Other management officials documented similar encounters with
Complainant because Complainant exhibited awkward behavior and avoided eye contact.
2 Claims 1t, 1u, 1x, and 1y were not accepted by the Agency for investigation.
Management further acknowledged that it inadvertently sent a set of interrogatories to anothe r
employee that included Complainant’s name . However, there was no other identifying
information about Complainant and the Agency took immediate action to resolve the issue.
Management also acknowledged that management officials met to discuss Complainant ’s
performance and insubordination to determine how to improve Complainant’s performance and
did not meet to terminate Complainant’s employment. Regarding statements on Complainant’s performance evaluation, management explained that the statements address ed specific areas in
Complainant’s performance objectives. Management also explained that Complainant was
ordered to the Office of Security after Complainant provided a letter to another manger that encouraged S1 to commit suicide or bring harm to himself .
Regarding Complainant’s reasonable accommodation request, the decision determined that management had not violated the Rehabilitation Act. Here, Complainant requested that his
polygraph test be waived because of work- induced stressed. However, managem ent explained
that Complainant’s request was denied because it was premature. Complainant had just taken and passed a polygraph test and his next test was due in four year s. Management further
acknowledged that Complainant’s medical condition, epilepsy, would not be an issue and Complainant only needed to provide notice before the test so that accommodations could be made.
As for Complainant’s hostile work environment claims, the decision determined that the
incidents were not sufficiently or pervasive to establish a legally hostile work environment and
Complainant failed to demonstrate that the Agency’s actions were based on discriminatory or retaliatory animus.
In the instant request for reconsideration, Complainant submits a statement expressing disagreement with the appellate decision , many matters of which were previously raised on
appeal . However, we emphasize that a request for reconsideration is not a second appeal to the
Commission. Equal Employment Opportunity Management Directive for 29 C.F .R. Part 1614
(EEO MD -110), Chap. 9 § VI.A (Aug. 5, 2015); see, e.g., Lopez v. Dep't of Agric., EEOC
Request No. 0520070736 (Aug. 20, 2007). Rather, 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 Agency. Complainant has not done so here .
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. The decision in EEOC Appeal No. 2019000214 remains the Commission's decision. There is no further right of administra tive 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 complain t 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 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 at torney 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 14, 2021
Date | [
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"Lopez v. Dep't of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007)",
"29 C.F.R. § 1614.405(a)",
"29 C.F.R. § 1614.405(c)",
"29 C.F.R. § 1614.107(a)"
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375 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120083138.txt | 0120083138.txt | TXT | text/plain | 14,326 | Mary E. Demmitt, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency. | June 9, 2008 | Appeal Number: 0120083138
Case Facts:
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 9, 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
on the bases of sex (female) and reprisal for prior protected EEO activity
when:
1. between April 2006 and December 26, 2007, complainant's supervisor and
her co-workers created a hostile work environment by making derogatory
comments and inappropriate faces; by questioning complainant's
performance, and her character;
2. between April 2006 and October 17, 2007, complainant's supervisor
and co-worker harassed her by insinuating that complainant was a lesbian
and that she was having an affair with a co-worker;
3. on October 31, 2007, complainant was removed from her position; and
4. between April 2006 and July 2007, her supervisor denied training to
advance her career
The agency dismissed claims 1, and 2 as untimely in accordance with EEOC
Regulation 29 C.F.R. § 1614.107(a)(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 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.
In claims 1 and 2 the record indicates that the alleged discriminatory
events occurred between April 2006 and December 26, 2007, but complainant
did not initiate contact with an EEO Counselor until December 13, 2007.
The agency found that complainant failed to timely initiate contact
with an EEO Counselor and dismissed claims 1 and 2 as untimely.
On appeal, complainant indicates that in October 2006, she spoke with
her supervisor's supervisor regarding her EEO concerns and in November
2006, contacted the agency's EEO office regarding her workplace issues.
Complainant further indicates that she was told that she had contacted
the wrong EEO office and that she needed to contact the EEO office at
the agency's Aberdeen Proving Ground facility. In its opposition to
complainant's appeal, the agency acknowledges that complainant contacted
the agency's EEO office "a year prior to filing her informal complaint."
The agency also indicates that when complainant contacted the EEO office
in November 2006, she was directed to the Aberdeen Proving Ground EEO
office. In the meantime, according to the agency, complainant spoke
with an attorney in the agency's Office of Chief Counsel regarding her
work related issues and EEO concerns, but did not demonstrate her intent
to file an EEO complaint. After review of the record in this matter,
however, the Commission finds that complainant met her obligation to
exhibit her intent to begin the EEO process when she spoke with an
agency official; her second line supervisor regarding her EEO concerns,
when she contacted the EEO office in November 2006 (although it was the
incorrect office), and when she spoke with the agency's attorney regarding
her workplace issues. 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." See Guy
v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994)
(quoting Williams v. Department of Defense, EEOC Request No. 05920506
(August 25, 2992)). 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." We find that the agency has failed to establish
that complainant failed to timely contact an EEO Counselor with the
intent to begin the EEO process. Although complainant contacted the
wrong EEO office regarding her concerns, there is no question that she
intended to initiate the EEO complaint process.
Final Decision:
Accordingly, the Commission finds the agency's dismissal of claims 1 and 2 was improper. Claims 1 and 2 are remanded to the agency. 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). In its final decision, the agency dismissed claims 3 and 4 for failure to state a claim pursuant to EEOC Regulation 29 C.F.R. § 1614.107(a)(1). In reaching this decision, the agency indicated that complainant failed to state a claim of reprisal because she had not engaged in protected EEO activity. Specifically, the agency indicated that her prior complaint to an agency official which resulted in an agency investigation did not amount to protected EEO activity subject to the protection of EEO laws and regulations. Upon review, the Commission finds that in its dismissal of claims 2 and 3, the agency has addressed the merits of complainant's allegations without a proper investigation as required by the regulations. We find that the agency's conclusion that complainant could not prove unlawful retaliation because she had no prior protected activity goes to the merits of claims 2 and 3, and is irrelevant to the procedural issue of whether she has stated a justicible claim under Title VII. See Osborne v. Department of the Treasury, EEOC Request No. 05960111 (July 19,1996); Lee v. United States Postal Service, EEOC Request No. 05930220 (August 12, 1993); Ferrazzoli v. United States Postal Service, EEOC Request No. 05910642 (August 15, 1991). In that regard, we find that the agency's decision dismissing claims 3 and 4 for failure to state a claim was improper. That portion of the agency's decision dismissing claims 3 and 4 is reversed and claims 3 and 4 are remanded to the agency. Accordingly, for the reasons set forth herein, the agency's decision dismissing complainant's complaint is hereby reversed. | Mary E. Demmitt,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120083138
Agency No. ARAPG08MAR00825
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 9, 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
on the bases of sex (female) and reprisal for prior protected EEO activity
when:
1. between April 2006 and December 26, 2007, complainant's supervisor and
her co-workers created a hostile work environment by making derogatory
comments and inappropriate faces; by questioning complainant's
performance, and her character;
2. between April 2006 and October 17, 2007, complainant's supervisor
and co-worker harassed her by insinuating that complainant was a lesbian
and that she was having an affair with a co-worker;
3. on October 31, 2007, complainant was removed from her position; and
4. between April 2006 and July 2007, her supervisor denied training to
advance her career
The agency dismissed claims 1, and 2 as untimely in accordance with EEOC
Regulation 29 C.F.R. § 1614.107(a)(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 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.
In claims 1 and 2 the record indicates that the alleged discriminatory
events occurred between April 2006 and December 26, 2007, but complainant
did not initiate contact with an EEO Counselor until December 13, 2007.
The agency found that complainant failed to timely initiate contact
with an EEO Counselor and dismissed claims 1 and 2 as untimely.
On appeal, complainant indicates that in October 2006, she spoke with
her supervisor's supervisor regarding her EEO concerns and in November
2006, contacted the agency's EEO office regarding her workplace issues.
Complainant further indicates that she was told that she had contacted
the wrong EEO office and that she needed to contact the EEO office at
the agency's Aberdeen Proving Ground facility. In its opposition to
complainant's appeal, the agency acknowledges that complainant contacted
the agency's EEO office "a year prior to filing her informal complaint."
The agency also indicates that when complainant contacted the EEO office
in November 2006, she was directed to the Aberdeen Proving Ground EEO
office. In the meantime, according to the agency, complainant spoke
with an attorney in the agency's Office of Chief Counsel regarding her
work related issues and EEO concerns, but did not demonstrate her intent
to file an EEO complaint. After review of the record in this matter,
however, the Commission finds that complainant met her obligation to
exhibit her intent to begin the EEO process when she spoke with an
agency official; her second line supervisor regarding her EEO concerns,
when she contacted the EEO office in November 2006 (although it was the
incorrect office), and when she spoke with the agency's attorney regarding
her workplace issues. 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." See Guy
v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994)
(quoting Williams v. Department of Defense, EEOC Request No. 05920506
(August 25, 2992)). 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." We find that the agency has failed to establish
that complainant failed to timely contact an EEO Counselor with the
intent to begin the EEO process. Although complainant contacted the
wrong EEO office regarding her concerns, there is no question that she
intended to initiate the EEO complaint process.
Accordingly, the Commission finds the agency's dismissal of claims 1
and 2 was improper. Claims 1 and 2 are remanded to the agency.
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).
In its final decision, the agency dismissed claims 3 and 4 for failure
to state a claim pursuant to EEOC Regulation 29 C.F.R. § 1614.107(a)(1).
In reaching this decision, the agency indicated that complainant failed
to state a claim of reprisal because she had not engaged in protected
EEO activity. Specifically, the agency indicated that her prior complaint
to an agency official which resulted in an agency investigation did not
amount to protected EEO activity subject to the protection of EEO laws
and regulations. Upon review, the Commission finds that in its dismissal
of claims 2 and 3, the agency has addressed the merits of complainant's
allegations without a proper investigation as required by the regulations.
We find that the agency's conclusion that complainant could not prove
unlawful retaliation because she had no prior protected activity goes
to the merits of claims 2 and 3, and is irrelevant to the procedural
issue of whether she has stated a justicible claim under Title VII.
See Osborne v. Department of the Treasury, EEOC Request No. 05960111 (July
19,1996); Lee v. United States Postal Service, EEOC Request No. 05930220
(August 12, 1993); Ferrazzoli v. United States Postal Service, EEOC
Request No. 05910642 (August 15, 1991). In that regard, we find that the
agency's decision dismissing claims 3 and 4 for failure to state a claim
was improper. That portion of the agency's decision dismissing claims
3 and 4 is reversed and claims 3 and 4 are remanded to the agency.
Accordingly, for the reasons set forth herein, the agency's decision
dismissing complainant's complaint is hereby reversed. The compliant
is remanded to the agency for further processing in accordance with this
decision and the Order below.
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 (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
November 13, 2008
__________________
Date
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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"Ericson v. Department of the Army, EEOC Request No. 05920623 (Januar... | [
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376 | https://www.eeoc.gov/sites/default/files/decisions/2021_08_16/0520180084%20Decision.pdf | 0520180084%20Decision.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 | [
"Terrie M. v. Dep’t of Agric ulture, EEOC Appeal No. 0120172443 (Oct ober 6, 2017)",
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377 | https://www.eeoc.gov/sites/default/files/decisions/2022_04_20/2021002582.pdf | 2021002582.pdf | PDF | application/pdf | 14,127 | Samuel R.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. | March 17, 2021 | Appeal Number: 2021002582
Background:
At the time of events giving rise to this complaint, Complainant wor ked as an Associate Counsel ,
GS-0905-15, at the Agency’s Office of Civilian Human Resources, Norfolk Operations Center ,
in Portsmouth, Virginia. On July 5, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on race (African -American) and sex (male) when :
1. On April 9, 2018, he was not selected for the position of Director of Equal
Employment Opportunity (EEO Director) at Navy Exchange Service Command
(NEXCOM) Enterprise .
Complainant also alleged that the Agency discriminated against him i n reprisal for prior
protected EEO activity (claim 1 of this complaint) when :
2. The position of EEO Disability Manager at NEXCOM Ente rprise, Norfolk, Virginia ,
to which he applied and was referred for consideration , was cancelled by the
NEXCOM EEO Director (the selectee in Claim 1) on May 22, 2018.
At the conclusion of the investigation, the Agency provided Complainant with a copy of t he
report of investigation and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant requested a hearing. After both parties submitted motions for a decision without a hearing, the AJ assigned to the case issued a decision by
summary judgment in favor of the Agency. The Agency subsequently issued a final order fully
implementing the AJ’s finding that Complainant failed to prove that the Agency subjected him to
discrimination as alleged. The instant appeal followe d.
The AJ found that, taking the facts as presented in the r eport of i nvestigation and viewing the
evidence in the light most favorable to Complain ant, he failed to create a genuine issue of
material fact to establish discrimination based on race, sex, or reprisal. Assuming for the sake of
argument that Complainant could establish a prima facie case of discrimination, the AJ found
that the Agency articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, with regard to Claim 1, the AJ determined that Complainant was not selected for
the position of EEO Director because the selectee’s resume and interview performance better
reflected the Knowledge, Skills, and Abilities (KSAs) that the Agency used in evaluating the
candidates. The AJ found that, although Complainant was an attorney with the Agency who
handled EEO claims, the selectee had “ extensive experience dealing with EEO issues, and her
knowledge of EEO laws within the private sector was evident in her prior two positions bef ore
working with the Agency.” The selectee’s “experiences demonstrated that she could also manage and coordinate others ’ work, advising managers at various levels regarding employment
policies and practices. . . . [S]he was [also] a Human Resources Execut ive.” The hiring panel
viewed C omplainant, by comparison, as lacking specific components necessary for the positio n,
as evidenced by his “ minimal leadership experience running an EEO office or leading a group of
EEO people [;] he mentioned he had oversight but had never written their annual reviews nor was
he able to articulate his ability to lead a team .” Based on resumes and interviews, which
included a writing sample submission, the hiring panel scored the selectee 249.6 for her KSAs
and scored Complainant 227.3. The selecting official (SO) , NEXCOM Executive Vice
President/Chief Operating Officer, “emphasized . . . that Complainant ‘ lacked experience to
demonstrate an ability to analyze effectiveness and recommend changes i n HR/EEO capacity ’
and ‘an ability to coordinate work of internal staff or business operators to improve HR/EEO
programs within an organization.’”
In making his selection for the EEO Director, SO “ relied predominantly on the resumes,
interview scores, and a review of ” the hiring panel’s scores for each candidate.
Regarding Claim 2, Complainant applied for another position, EEO Disability Manager, and
contends that the Agency cancelled the opening in reprisal for his initiating an informal complaint regarding his nonselection for the EEO Director position. The AJ first found that
Complainant had not established a prima facie case of retaliation because “ after the Ag ency
canceled the position on May 22, 2018, and the Agency posted a substantially similar job three months after, Agency management automatically considered Complainant’s application —
meaning the cancellation did not affect Complainant’s opportunity to be c onsidered for this
position.” Even assuming, arguendo, that Complainant established a prima facie case of reprisal,
the AJ determined that the Agency articulate d legitimate, nondiscriminatory reasons for the
cancellation of the job posting. Namely, the new EEO Director (that is, the selectee discussed
above with re gard to Claim 1 ) cancelled the position opening because she “did not believe it was
prudent to . . . make a senior -level hiring decision early on in her tenure at the Agency.” In the
selectee’s affidavit, she stated “that ‘there was no business rationale or justification to move
forward without taking time to fully assess the current EEO organization in light of management
directives. ’”
The AJ concluded that the record was devoid of evidence indicating that the Agency’s articulated
reasons for its actions were pretextual. R egarding his nonselection, the AJ found that
“Complainant has not met [his] burden to show pretext by showing that the Agency’s proffered
reasons for his non- selection are unworthy of credence. His qualifications were not plainly
superior to that of the Selectee, nor was there evidence a discriminatory reason likely motivated the Agency’s hiring decision.” With regard to the cancelled position, the AJ reasoned that
“Complainant’s evidence related to pretext does not demonstrate discriminatory intent by the
Agency since the position was reposted three months later ” and then “Complainant’s application
was considered by the Agency. Consequently, . . . the cancelation did not mean the Agency did
not consider Complainant’s application.”
Legal Analysis:
the Commission AFFIRMS the Agency’s final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant wor ked as an Associate Counsel ,
GS-0905-15, at the Agency’s Office of Civilian Human Resources, Norfolk Operations Center ,
in Portsmouth, Virginia. On July 5, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on race (African -American) and sex (male) when :
1. On April 9, 2018, he was not selected for the position of Director of Equal
Employment Opportunity (EEO Director) at Navy Exchange Service Command
(NEXCOM) Enterprise .
Complainant also alleged that the Agency discriminated against him i n reprisal for prior
protected EEO activity (claim 1 of this complaint) when :
2. The position of EEO Disability Manager at NEXCOM Ente rprise, Norfolk, Virginia ,
to which he applied and was referred for consideration , was cancelled by the
NEXCOM EEO Director (the selectee in Claim 1) on May 22, 2018.
At the | Samuel R.,1
Complainant,
v.
Carlos Del Toro,
Secretary,
Department of the Navy,
Agency.
Appeal No. 2021002582
Hearing No. 430-2019-00167X
Agency No. 18-00250-01820
DECISION
Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 17, 2021, final
order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violatio n 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 order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant wor ked as an Associate Counsel ,
GS-0905-15, at the Agency’s Office of Civilian Human Resources, Norfolk Operations Center ,
in Portsmouth, Virginia. On July 5, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on race (African -American) and sex (male) when :
1. On April 9, 2018, he was not selected for the position of Director of Equal
Employment Opportunity (EEO Director) at Navy Exchange Service Command
(NEXCOM) Enterprise .
Complainant also alleged that the Agency discriminated against him i n reprisal for prior
protected EEO activity (claim 1 of this complaint) when :
2. The position of EEO Disability Manager at NEXCOM Ente rprise, Norfolk, Virginia ,
to which he applied and was referred for consideration , was cancelled by the
NEXCOM EEO Director (the selectee in Claim 1) on May 22, 2018.
At the conclusion of the investigation, the Agency provided Complainant with a copy of t he
report of investigation and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant requested a hearing. After both parties submitted motions for a decision without a hearing, the AJ assigned to the case issued a decision by
summary judgment in favor of the Agency. The Agency subsequently issued a final order fully
implementing the AJ’s finding that Complainant failed to prove that the Agency subjected him to
discrimination as alleged. The instant appeal followe d.
The AJ found that, taking the facts as presented in the r eport of i nvestigation and viewing the
evidence in the light most favorable to Complain ant, he failed to create a genuine issue of
material fact to establish discrimination based on race, sex, or reprisal. Assuming for the sake of
argument that Complainant could establish a prima facie case of discrimination, the AJ found
that the Agency articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, with regard to Claim 1, the AJ determined that Complainant was not selected for
the position of EEO Director because the selectee’s resume and interview performance better
reflected the Knowledge, Skills, and Abilities (KSAs) that the Agency used in evaluating the
candidates. The AJ found that, although Complainant was an attorney with the Agency who
handled EEO claims, the selectee had “ extensive experience dealing with EEO issues, and her
knowledge of EEO laws within the private sector was evident in her prior two positions bef ore
working with the Agency.” The selectee’s “experiences demonstrated that she could also manage and coordinate others ’ work, advising managers at various levels regarding employment
policies and practices. . . . [S]he was [also] a Human Resources Execut ive.” The hiring panel
viewed C omplainant, by comparison, as lacking specific components necessary for the positio n,
as evidenced by his “ minimal leadership experience running an EEO office or leading a group of
EEO people [;] he mentioned he had oversight but had never written their annual reviews nor was
he able to articulate his ability to lead a team .” Based on resumes and interviews, which
included a writing sample submission, the hiring panel scored the selectee 249.6 for her KSAs
and scored Complainant 227.3. The selecting official (SO) , NEXCOM Executive Vice
President/Chief Operating Officer, “emphasized . . . that Complainant ‘ lacked experience to
demonstrate an ability to analyze effectiveness and recommend changes i n HR/EEO capacity ’
and ‘an ability to coordinate work of internal staff or business operators to improve HR/EEO
programs within an organization.’”
In making his selection for the EEO Director, SO “ relied predominantly on the resumes,
interview scores, and a review of ” the hiring panel’s scores for each candidate.
Regarding Claim 2, Complainant applied for another position, EEO Disability Manager, and
contends that the Agency cancelled the opening in reprisal for his initiating an informal complaint regarding his nonselection for the EEO Director position. The AJ first found that
Complainant had not established a prima facie case of retaliation because “ after the Ag ency
canceled the position on May 22, 2018, and the Agency posted a substantially similar job three months after, Agency management automatically considered Complainant’s application —
meaning the cancellation did not affect Complainant’s opportunity to be c onsidered for this
position.” Even assuming, arguendo, that Complainant established a prima facie case of reprisal,
the AJ determined that the Agency articulate d legitimate, nondiscriminatory reasons for the
cancellation of the job posting. Namely, the new EEO Director (that is, the selectee discussed
above with re gard to Claim 1 ) cancelled the position opening because she “did not believe it was
prudent to . . . make a senior -level hiring decision early on in her tenure at the Agency.” In the
selectee’s affidavit, she stated “that ‘there was no business rationale or justification to move
forward without taking time to fully assess the current EEO organization in light of management
directives. ’”
The AJ concluded that the record was devoid of evidence indicating that the Agency’s articulated
reasons for its actions were pretextual. R egarding his nonselection, the AJ found that
“Complainant has not met [his] burden to show pretext by showing that the Agency’s proffered
reasons for his non- selection are unworthy of credence. His qualifications were not plainly
superior to that of the Selectee, nor was there evidence a discriminatory reason likely motivated the Agency’s hiring decision.” With regard to the cancelled position, the AJ reasoned that
“Complainant’s evidence related to pretext does not demonstrate discriminatory intent by the
Agency since the position was reposted three months later ” and then “Complainant’s application
was considered by the Agency. Consequently, . . . the cancelation did not mean the Agency did
not consider Complainant’s application.”
ANALYSIS AND FINDINGS
The Commission’s regulations allow an AJ to grant summary judgment when she or he 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 factfinder could find in favor of the nonmoving 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. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order implementing 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
2 The AJ noted that , while Complainant ultimately was not selected for the EEO Disability
Manager position, that second nonselection was not at issue in the instant matter.
29 C.F.R. Part 1614 (EEO -MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing
that an AJ’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 infe rences raised by the undisputed facts in favor
of Complainant, a reasonable factfinder could not find in his favor. Upon careful review of 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 alleged.
CONCLUSION
Accordingly, we AFFIRM the Agency’s final order fully implementing the AJ’s 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 est ablish 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 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 submitt ed 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 t he 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 act ion, 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 signature
Carlton M. Hadden, Director
Office of Federal Operations
March 29, 2022
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378 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A33920_r.txt | 01A33920_r.txt | TXT | text/plain | 12,385 | Mary F. Simmons v. United States Postal Service 01A33920 October 28, 2003 . Mary F. Simmons, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. | October 28, 2003 | Appeal Number: 01A33920
Case Facts:
Complainant filed a timely appeal with this Commission from the final
agency decision dated May 20, 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.
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq.
On February 21, 2003, complainant contacted the EEO office claiming
that she was subjected to discrimination when on August 23, 2001,
she was instructed to report back to the inbound docks for duty after
having been on permanent limited duty for the preceding four years.
Informal efforts to resolve complainant's complaint were unsuccessful.
Subsequently, on April 22, 2003, complainant filed a formal complaint
alleging that she was the victim of unlawful employment discrimination
on the bases of race and disability.
On May 20, 2003, the agency issued a final decision dismissing the
formal complaint on the grounds of untimely EEO Counselor contact.
The agency determined that complainant's February 21, 2003 contact was
well beyond the forty-five day time limit, with respect to the August
23, 2001 incident. The agency found that complainant was, or should
have been, aware of the time limit to contact an EEO Counselor because
posters with the 45-day time limit were on display at the facility
where complainant worked. The agency further stated that complainant
was provided information on EEO rules and regulations as part of the
training for new employees. Complainant argues on appeal that she was
not aware of the time limits to contact an EEO Counselor.
On appeal, complainant challenges the agency's assertion that she was
aware, or should have been aware, of the time limits for contacting an
EEO Counselor.
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.
It is the Commission's policy that constructive knowledge will be imputed
to an employee when an employer has fulfilled its obligations under
Title VII. Thompson v. Department of the Army, EEOC Request No. 05910474
(Sept. 12, 1991) (citing Kale v. Combined Ins. Co. of America, 861 F.2d
746 (1st Cir. 1988) ). In the instant case, the agency claimed that EEO
posters informed complainant of the time limits for contacting an EEO
Counselor. The agency also states complainant was provided information on
EEO rules and regulations during the new employees' orientation training.
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 Serv.,
EEOC Request No. 05930134 (Aug. 19, 1993) (citing Polsby v. Shalala, 113
S. Ct. 1940 (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 complainant's
contact of an EEO Counselor was untimely without specific evidence that
the poster contained notice of the time limit. Id.
In the present case, although the agency has asserted that the EEO
posters contained the time limit for contacting an EEO Counselor, the
agency has placed no evidence in the record supporting this assertion.
For instance, there is no copy of a poster in the record showing the time
limit nor is there an affidavit from any agency official stating that the
poster was indeed posted at a specified time, in a specified place, with
the appropriate time limits. There is also not sufficient evidence in
the record showing complainant received information on the time limits
for contacting an EEO Counselor during the orientation training for
new employees.
Because we determine that there is insufficient evidence of record
reflecting whether complainant was aware of the limitation period for
timely contacting an EEO Counselor, we VACATE the agency's dismissal
of the instant complaint. The complaint is REMANDED to the agency for
further processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to take the following action:
The agency shall conduct a supplemental investigation on the issue of
whether complainant had constructive or actual notice of the time limits
for contacting an EEO Counselor. The agency shall supplement the record
with affidavit(s) and/or copies of posters showing that complainant
was informed of the time limit for contacting an EEO Counselor during
the relevant time frame. The agency shall also supplement the record
with evidence, if available, that shows whether complainant received
EEO information during the orientation period for new employees, and
whether she was provided information on the time limits for contacting
an EEO Counselor.
After the agency determines whether complainant had actual or constructive
notice of the time limit for contacting an EEO Counselor and acted in
a timely manner once she obtained actual or constructive knowledge, the
agency shall, within 30 days after the date that this decision becomes
final, issue a new final agency decision dismissing the complaint or
issue an acceptance letter.
A copy of the new final agency decision or letter accepting the complaint
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. | Mary F. Simmons v. United States Postal Service
01A33920
October 28, 2003
.
Mary F. Simmons,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A33920
Agency No. 1H-374-0030-02
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated May 20, 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.
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq.
On February 21, 2003, complainant contacted the EEO office claiming
that she was subjected to discrimination when on August 23, 2001,
she was instructed to report back to the inbound docks for duty after
having been on permanent limited duty for the preceding four years.
Informal efforts to resolve complainant's complaint were unsuccessful.
Subsequently, on April 22, 2003, complainant filed a formal complaint
alleging that she was the victim of unlawful employment discrimination
on the bases of race and disability.
On May 20, 2003, the agency issued a final decision dismissing the
formal complaint on the grounds of untimely EEO Counselor contact.
The agency determined that complainant's February 21, 2003 contact was
well beyond the forty-five day time limit, with respect to the August
23, 2001 incident. The agency found that complainant was, or should
have been, aware of the time limit to contact an EEO Counselor because
posters with the 45-day time limit were on display at the facility
where complainant worked. The agency further stated that complainant
was provided information on EEO rules and regulations as part of the
training for new employees. Complainant argues on appeal that she was
not aware of the time limits to contact an EEO Counselor.
On appeal, complainant challenges the agency's assertion that she was
aware, or should have been aware, of the time limits for contacting an
EEO Counselor.
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.
It is the Commission's policy that constructive knowledge will be imputed
to an employee when an employer has fulfilled its obligations under
Title VII. Thompson v. Department of the Army, EEOC Request No. 05910474
(Sept. 12, 1991) (citing Kale v. Combined Ins. Co. of America, 861 F.2d
746 (1st Cir. 1988) ). In the instant case, the agency claimed that EEO
posters informed complainant of the time limits for contacting an EEO
Counselor. The agency also states complainant was provided information on
EEO rules and regulations during the new employees' orientation training.
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 Serv.,
EEOC Request No. 05930134 (Aug. 19, 1993) (citing Polsby v. Shalala, 113
S. Ct. 1940 (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 complainant's
contact of an EEO Counselor was untimely without specific evidence that
the poster contained notice of the time limit. Id.
In the present case, although the agency has asserted that the EEO
posters contained the time limit for contacting an EEO Counselor, the
agency has placed no evidence in the record supporting this assertion.
For instance, there is no copy of a poster in the record showing the time
limit nor is there an affidavit from any agency official stating that the
poster was indeed posted at a specified time, in a specified place, with
the appropriate time limits. There is also not sufficient evidence in
the record showing complainant received information on the time limits
for contacting an EEO Counselor during the orientation training for
new employees.
Because we determine that there is insufficient evidence of record
reflecting whether complainant was aware of the limitation period for
timely contacting an EEO Counselor, we VACATE the agency's dismissal
of the instant complaint. The complaint is REMANDED to the agency for
further processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to take the following action:
The agency shall conduct a supplemental investigation on the issue of
whether complainant had constructive or actual notice of the time limits
for contacting an EEO Counselor. The agency shall supplement the record
with affidavit(s) and/or copies of posters showing that complainant
was informed of the time limit for contacting an EEO Counselor during
the relevant time frame. The agency shall also supplement the record
with evidence, if available, that shows whether complainant received
EEO information during the orientation period for new employees, and
whether she was provided information on the time limits for contacting
an EEO Counselor.
After the agency determines whether complainant had actual or constructive
notice of the time limit for contacting an EEO Counselor and acted in
a timely manner once she obtained actual or constructive knowledge, the
agency shall, within 30 days after the date that this decision becomes
final, issue a new final agency decision dismissing the complaint or
issue an acceptance letter.
A copy of the new final agency decision or letter accepting the complaint
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
October 28, 2003
__________________
Date
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379 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01982175.txt | 01982175.txt | TXT | text/plain | 12,629 | February 12, 1999 | Appeal Number: 01982175
Background:
Appellant initiated contact with an EEO Counselor on July 4, 1997. In a
formal EEO complaint dated October 7, 1997, appellant alleged that she
had been discriminated against on the basis of her sex (female) when in
January 1995, a male employee reached out and grabbed her left breast. The
EEO Counselor's report states that when appellant was asked why she took
so long to initiate her complaint, appellant stated that she was unaware
of the 45-day limitation period for contacting an EEO Counselor.
In its final decision, the agency dismissed 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 was after the expiration
of the 45-day limitation period. According to the agency, EEO posters
which provide information concerning the appropriate official to contact
regarding EEO matters, as well as the prescribed time limits were and are
prominently displayed in appellant's work facility. The agency concluded
that appellant failed to exercise due diligence or prudent regard for
her rights. Thereafter, appellant submitted the instant appeal.
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.
Appellant alleged that she was discriminated against when in January 1995,
a male coworker reached out and grabbed her left breast. Appellant did
not initiate contact with an EEO Counselor until July 4, 1997. However,
we note that the EEO Counselor's report indicates that appellant claimed
she was unaware of the 45-day limitation period for contacting an EEO
Counselor. Beyond the self-serving statement in the final decision,
the agency failed to present any evidence to show that appellant was
informed or aware of the applicable time limit, or otherwise refute
appellant's contention that she lacked knowledge of the applicable
limitation period for contacting an EEO Counselor.
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 on the grounds that appellant failed to contact an EEO Counselor in a timely manner. BACKGROUND Appellant initiated contact with an EEO Counselor on July 4, 1997. In a formal EEO complaint dated October 7, 1997, appellant alleged that she had been discriminated against on the basis of her sex (female) when in January 1995, a male employee reached out and grabbed her left breast. The EEO Counselor's report states that when appellant was asked why she took so long to initiate her complaint, appellant stated that she was unaware of the 45-day limitation period for contacting an EEO Counselor. In its final decision, the agency dismissed 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 was after the expiration of the 45-day limitation period. According to the agency, EEO posters which provide information concerning the appropriate official to contact regarding EEO matters, as well as the prescribed time limits were and are prominently displayed in appellant's work facility. The agency concluded that appellant failed to exercise due diligence or prudent regard for her rights. Thereafter, appellant submitted the instant appeal. 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. Appellant alleged that she was discriminated against when in January 1995, a male coworker reached out and grabbed her left breast. Appellant did not initiate contact with an EEO Counselor until July 4, 1997. However, we note that the EEO Counselor's report indicates that appellant claimed she was unaware of the 45-day limitation period for contacting an EEO Counselor. Beyond the self-serving statement in the final decision, the agency failed to present any evidence to show that appellant was informed or aware of the applicable time limit, or otherwise refute appellant's contention that she lacked knowledge of the applicable limitation period for contacting an EEO Counselor. Accordingly, the agency's decision to dismiss appellant's complaint on the grounds of untimely contact is VACATED. | Anna Shannon v. United States Postal Service
01982175
February 12, 1999
Anna Shannon, )
Appellant, )
)
v. ) Appeal No. 01982175
) Agency No. 1-G-771-0158-97
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 her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. §2000e et seq. Appellant received the final agency decision
on December 26, 1997. The appeal was postmarked January 20, 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 on the grounds that appellant failed to contact an EEO Counselor
in a timely manner.
BACKGROUND
Appellant initiated contact with an EEO Counselor on July 4, 1997. In a
formal EEO complaint dated October 7, 1997, appellant alleged that she
had been discriminated against on the basis of her sex (female) when in
January 1995, a male employee reached out and grabbed her left breast. The
EEO Counselor's report states that when appellant was asked why she took
so long to initiate her complaint, appellant stated that she was unaware
of the 45-day limitation period for contacting an EEO Counselor.
In its final decision, the agency dismissed 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 was after the expiration
of the 45-day limitation period. According to the agency, EEO posters
which provide information concerning the appropriate official to contact
regarding EEO matters, as well as the prescribed time limits were and are
prominently displayed in appellant's work facility. The agency concluded
that appellant failed to exercise due diligence or prudent regard for
her rights. Thereafter, appellant submitted the instant appeal.
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.
Appellant alleged that she was discriminated against when in January 1995,
a male coworker reached out and grabbed her left breast. Appellant did
not initiate contact with an EEO Counselor until July 4, 1997. However,
we note that the EEO Counselor's report indicates that appellant claimed
she was unaware of the 45-day limitation period for contacting an EEO
Counselor. Beyond the self-serving statement in the final decision,
the agency failed to present any evidence to show that appellant was
informed or aware of the applicable time limit, or otherwise refute
appellant's contention that she lacked knowledge of the applicable
limitation period for contacting an EEO Counselor. Accordingly, the
agency's decision to dismiss appellant's complaint on the grounds of
untimely contact is VACATED. This complaint is hereby REMANDED for
further processing pursuant to the ORDER below.
ORDER
The agency is ORDERED to conduct a supplemental investigation which
shall include the following actions:
The agency is ORDERED to conduct a supplemental investigation with regard
to the issue of when appellant had actual or constructive notice of the
time limit for contacting an EEO Counselor. The agency shall gather any
evidence necessary to show whether and when appellant had actual knowledge
or was put on constructive notice of the time limit for contacting an EEO
Counselor. The agency shall make a determination as to whether appellant
contacted an EEO Counselor in a timely manner after she had actual or
constructive notice of the time limit for contacting an EEO Counselor.
If an EEO poster was displayed at appellant's work facility during the
relevant period, then the agency shall supplement the record with a copy
of the EEO poster. The agency shall, within thirty (30) calendar days
of the date this decision becomes final, issue a notice of processing
or new final agency decision.
A copy of the notice of processing or 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:
February 12, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations | [
"Title VII. Thompson v. Department of the Army, EEOC Request No. 05910474 (September 12, 1991)",
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380 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120152559.pdf | 0120152559.pdf | PDF | application/pdf | 14,101 | Alda F.,1 Complainant, v. John Kerry, Secretary, Department of State, Agency. | July 17, 2015 | Appeal Number: 0120152559
Background:
At the time of events giving rise to this complaint, Complainant worked as a Foreign Service
Officer at the Agency’s Bureau of African Affairs in Washington, D.C. In June 2013,
Complainant assumed the collateral duty of EEO Counselor. On November 6, 2013,
Complainant was assigned her first case. Complainant held counseling sessions with various
management officials in connection with that case and completed an EEO Counselor Report. An EEO Specialist (EEO -1) subsequently informed the Chief of the Office of Civil Rights’
Intake and Resolution Division (Chief) about some concerning statements in the report by one
of the management officials (M1). The Chief contacted M1 to confirm whether she made the
statements. M1 denied making the statements and reported comments Complainant had made.
M1 stated that Complainant commented that she had received a $250,000 award in her own
complaint against the Agency. The Chief investigated the matter by taking statements from
Complainant, M1, and another witness. Complainant admitted to referencing her own
settlement , but claimed that the amount was $100,000 and was against another agency. The
Chief concluded that Complainant had lost her neutrality as an EEO Counselor in violation of
the EEO Counselor Handbook. As a result, the Chief informed Complainant that he was
removing her from her EEO Counselor collateral duty.
On August 12, 2014, Complainant filed a formal complaint alleging that the Agency
discriminated against her in reprisal for prior protected EEO activity when, on June 24, 2014,
Complainant was issued correspondence from the Chief, Office of Civil Rights, Intake and
Resolution Division, removing Complainant from the EEO Counselor Program.
At the conclusion of the i nvestigation, 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). When Complainant did not
respond withi n the timeframe provided in 29 C.F.R. § 1614.108(f), the Agency issued a FAD
pursuant to 29 C.F.R. § 1614.110(b).2
In the FAD, the Agency assumed arguendo that Complainant established a prima facie case of
reprisal and found that management articulated legitimate, non -retaliatory reasons for its
actions. Specifically, the Chief confirmed that he removed Complainant from the EEO
Counselor Program based on her performance as an EEO Counselor. The Agency noted that
Complainant admitted that she informed M1 of her prior EEO activity and her successful
litigation which resulted in $100,000 by her account and $250,000 by management’s account.
In addition, Complainant attributed statements to M1 which were untrue and appeared to advocate a position on behalf of the filing individual . Finally, when management asked about
the substance of the complaint at issue, Complainant could not provide the requested information and appeared to be advocating on behalf of the filing individual.
The Agency concluded that Complainant failed to show that management’s reasons for its actions were pretextual. As a result, the Agency found that Complainant had not been
subjected to reprisal as alleged. The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant co ntends that the Chief terminated her as an EEO Counselor in
retaliation for her prior protected EEO activity. Complainant alleges that the Chief jumped to the erroneous conclusion that she was not neutral because of her statement to a management
2 On appeal, Complainant claims that she did not timely receive the ROI because the Agency
mailed it to her former address. Other than providing a different address in her investigative affidavit, there is no evidence that Complainant properly notified the Agency of her change of
address. The record reveals that the Agency informed Complainant in the Notice of
Acceptance of Formal Complaint that it was her responsibility to notify the Agency of any
change of address. Complainant acknowledges that she subs equently received the ROI, and the
Commission finds no basis to reverse the FAD.
official that she had prevailed in a prior EEO case. Complainant argues that the Chief failed to
allow her to explain the context of her statement to M1 and that the reasons for terminating her
from the EEO Counselor Program were pretextual. Finally, Complainant contends that her
performance was adequate and neutral. Accordingly, Complainant requests that the
Commission reverse the FAD.
Legal Analysis:
The Commission accepts Complainant’s appeal from the July 17, 2015 final Agency decision
(FAD) 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. The Commission’s review is de novo. For the following reasons,
the Commission AFF IRMS the FAD.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Foreign Service
Officer at the Agency’s Bureau of African Affairs in Washington, D.C. In June 2013,
Complainant assumed the collateral duty of EEO Counselor. On November 6, 2013,
Complainant was assigned her first case. Complainant held counseling sessions with various
management officials in connection with that case and completed an EEO Counselor Report. An EEO Specialist (EEO -1) subsequently informed the Chief of the Office of Civil Rights’
Intake and Resolution Division (Chief) about some concerning statements in the report by one
of the management officials (M1). The Chief contacted M1 to confirm whether she made the
statements. M1 denied making the statements and reported comments Complainant had made.
M1 stated that Complainant commented that she had received a $250,000 award in her own
complaint against the Agency. The Chief investigated the matter by taking statements from
Complainant, M1, and another witness. Complainant admitted to referencing her own
settlement , but claimed that the amount was $100,000 and was against another agency. The
Chief concluded that Complainant had lost her neutrality as an EEO Counselor in violation of
the EEO Counselor Handbook. As a result, the Chief informed Complainant that he was
removing her from her EEO Counselor collateral duty.
On August 12, 2014, Complainant filed a formal complaint alleging that the Agency
discriminated against her in reprisal for prior protected EEO activity when, on June 24, 2014,
Complainant was issued correspondence from the Chief, Office of Civil Rights, Intake and
Resolution Division, removing Complainant from the EEO Counselor Program.
At the | Alda F.,1
Complainant,
v.
John Kerry,
Secretary,
Department of State,
Agency.
Appeal No. 0120152559
Agency No. DOS -0265- 14
DECISION
The Commission accepts Complainant’s appeal from the July 17, 2015 final Agency decision
(FAD) 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. The Commission’s review is de novo. For the following reasons,
the Commission AFF IRMS the FAD.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Foreign Service
Officer at the Agency’s Bureau of African Affairs in Washington, D.C. In June 2013,
Complainant assumed the collateral duty of EEO Counselor. On November 6, 2013,
Complainant was assigned her first case. Complainant held counseling sessions with various
management officials in connection with that case and completed an EEO Counselor Report. An EEO Specialist (EEO -1) subsequently informed the Chief of the Office of Civil Rights’
Intake and Resolution Division (Chief) about some concerning statements in the report by one
of the management officials (M1). The Chief contacted M1 to confirm whether she made the
statements. M1 denied making the statements and reported comments Complainant had made.
M1 stated that Complainant commented that she had received a $250,000 award in her own
complaint against the Agency. The Chief investigated the matter by taking statements from
Complainant, M1, and another witness. Complainant admitted to referencing her own
settlement , but claimed that the amount was $100,000 and was against another agency. The
Chief concluded that Complainant had lost her neutrality as an EEO Counselor in violation of
the EEO Counselor Handbook. As a result, the Chief informed Complainant that he was
removing her from her EEO Counselor collateral duty.
On August 12, 2014, Complainant filed a formal complaint alleging that the Agency
discriminated against her in reprisal for prior protected EEO activity when, on June 24, 2014,
Complainant was issued correspondence from the Chief, Office of Civil Rights, Intake and
Resolution Division, removing Complainant from the EEO Counselor Program.
At the conclusion of the i nvestigation, 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). When Complainant did not
respond withi n the timeframe provided in 29 C.F.R. § 1614.108(f), the Agency issued a FAD
pursuant to 29 C.F.R. § 1614.110(b).2
In the FAD, the Agency assumed arguendo that Complainant established a prima facie case of
reprisal and found that management articulated legitimate, non -retaliatory reasons for its
actions. Specifically, the Chief confirmed that he removed Complainant from the EEO
Counselor Program based on her performance as an EEO Counselor. The Agency noted that
Complainant admitted that she informed M1 of her prior EEO activity and her successful
litigation which resulted in $100,000 by her account and $250,000 by management’s account.
In addition, Complainant attributed statements to M1 which were untrue and appeared to advocate a position on behalf of the filing individual . Finally, when management asked about
the substance of the complaint at issue, Complainant could not provide the requested information and appeared to be advocating on behalf of the filing individual.
The Agency concluded that Complainant failed to show that management’s reasons for its actions were pretextual. As a result, the Agency found that Complainant had not been
subjected to reprisal as alleged. The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant co ntends that the Chief terminated her as an EEO Counselor in
retaliation for her prior protected EEO activity. Complainant alleges that the Chief jumped to the erroneous conclusion that she was not neutral because of her statement to a management
2 On appeal, Complainant claims that she did not timely receive the ROI because the Agency
mailed it to her former address. Other than providing a different address in her investigative affidavit, there is no evidence that Complainant properly notified the Agency of her change of
address. The record reveals that the Agency informed Complainant in the Notice of
Acceptance of Formal Complaint that it was her responsibility to notify the Agency of any
change of address. Complainant acknowledges that she subs equently received the ROI, and the
Commission finds no basis to reverse the FAD.
official that she had prevailed in a prior EEO case. Complainant argues that the Chief failed to
allow her to explain the context of her statement to M1 and that the reasons for terminating her
from the EEO Counselor Program were pretextual. Finally, Complainant contends that her
performance was adequate and neutral. Accordingly, Complainant requests that the
Commission reverse the FAD.
ANALYSIS AND FINDINGS
Disparate Treatment
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 facie case by demonstrating
that she 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. A complainant may establish a prima facie case
of reprisal by showing that: (1) s he engaged in a protected activity; (2) the A gency was aware
of the protected activity; (3) sub sequently, 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).
The burden then shifts to t he 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
explanat ion 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).
In the instant case, assuming arguendo that Complainant established a prima facie case of
reprisal, the Comm ission finds that Complainant failed to present evidence to rebut the
Agency’ s legitimate, non -retaliatory reasons for its actions. In particular, the Chief affirmed
that he decided to remove Complainant from the EEO Counselor Program because he believed
she had lost her neutrality during the counseling process and was acting more as an advocate
than as a neutral. ROI, at 220. The Chief noted that M1 brought to his attention that Complainant was basically attempting to coerce the resp onding management official to settle by
citing her own monetary award of $250,000 in her own com plaint against the Agency. Id
. In
addition, the Chief stated that Complainant’s first version of the Counselor’s Report for the case at issue included false i nformation and judging statements which were found to be a non-
neutral accounting of her interactions as a counselor.
Id.
EEO-1 confirmed that she perceived Complainant’s position as a neutral had been
compromised based on the language in the EEO Counselor’s Report. ROI, at 233. The
Supervisory Administrative Specialist was present during Complainant’s counseling session
with M1 and corroborated that Complainant advocated for settlement and failed to act as a
neutral counselor during the session. Id. at 238. Based on witness statements and
Complainant’s own admission that she made the statement about her own settlement, th e Chief
decided to remove Complainant from her collateral duty as EEO Counselor based upon her
loss of neutrality and the appearance she had migrated into an advocate role. Id. at 220- 21.
Complainant now bears the burden of establishing that the Agency's stated reasons are merely
a pretext for discrimination. EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can
do this directly by showing that the Agency's proffered explanation is unworthy of credence.
Tx. Dep't of Cmty. Affairs v. Burdine , 450 U.S. at 256.
As Complainant chose not to request a hearing, the Commission does not have the benefit of
an Administrative Judge's credibility determinations after a hearing. Therefore, the
Commission can only evaluate the facts based on the weight of t he evidence presented. The
Commission finds no evidence that Complainant's prior protected EEO activity was a factor in any of the Agency's actions. At all times, the ultimate burden remains with Complainant to
demonstrate by a preponderance of the evide nce that the Agency's reasons were not the real
reasons and that the Agency acted on the basis of retaliatory animus. Complainant failed to
carry this burden. As a result, the Commission finds that Complainant has not established that
she was subjected t o reprisal as alleged .
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.
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 argument s
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 civ il 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 14, 2016
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381 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120151089.txt | 0120151089.txt | TXT | text/plain | 13,860 | Octavio C.,1 Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency. | January 13, 2015 | Appeal Number: 0120151089
Background:
During the period at issue, Complainant worked as a Supervisory Sports Specialist at the Agency's Schofield Barracks in Hawaii.
On December 30, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Korean) and sex (male).
In its final decision dated December 30, 2015, the Agency determined that the formal complaint was comprised of the following claim:
On July 31 2014, [Complainant was] provided a Notice of Decision to Proposed Suspension for abusive or offensive conduct, gestures, or similar conduct.
The Agency dismissed the formal complaint on the grounds of untimely EEO Counselor contact. The Agency reasoned that Complainant initiated EEO contact on November 5, 2014, outside of the applicable time limit. In addition, the Agency dismissed the formal complaint on the alternate grounds that Complainant previously raised this matter in a grievance. Specifically, the Agency stated that on August 11, 2014, Complainant had submitted a third step Administrative grievance on this issue.
The instant appeal followed. On appeal, Complainant asserts that he initially spoke to a named EEO Officer in August 2014 to file an EEO complaint. However, Complainant asserts that he was told by the EEO Officer to wait until to a decision was rendered on his administrative grievance and then Complainant could go directly to the formal EEO process rather than the informal process.
In response, the Agency requests that we affirm its final decision dismissing Complainant's complaint. The Agency, however, does not respond to Complainant's assertion that he was provided with incorrect information from a named EEO Officer in August 2014.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.301(a) states 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 claims of discrimination to be raised in a negotiated grievance procedure, a person wishing to file a complaint or 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. An aggrieved employee who files a grievance with an agency whose negotiated agreement permits the acceptance of grievances which allege discrimination may not thereafter file a complaint on the same matter under this part 1614 irrespective of whether the agency has informed the individual of the need to elect or whether the grievance has raised an issue of discrimination.
The Agency improperly dismissed the formal complaint on the grounds that Complainant previously raised this matter in a grievance. Complainant raised this matter in an administrative grievance but not though a negotiated grievance procedure as set forth by the Commission's regulations. EEOC Management Directive (MD)-110, Chapter 4, III (C) (rev. Aug. 2015), provides, in pertinent part, that "[t]here is nothing that prevents an employee from using an agency's administrative process, as opposed to a negotiated grievance process, and the EEO complaint process."
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 Agency improperly dismissed the formal complaint on the grounds of untimely EEO Counselor contact. The July 31, 2014 Decision on Proposed Suspension lists August 4-August 17, 2014 as the effective dates of the suspension. Thus, Complainant's 45-day period to initiate EEO contact began on August 4, 2014. Complainant, on appeal, asserts that he contacted a named EEO Officer in August 2014, and that the EEO Officer told him to wait to pursue the EEO process until after a decision on his administrative grievance.
We further note that the record contains an "Information Inquiry form" reflecting that Complainant spoke to an EEO Officer on July 21, 2014 regarding his proposed suspension. Therein, it provides that Complainant was advised that he had options in the event he was suspended, an administrative grievance or EEO forum, but that he could not choose both. This form further provides that Complainant stated that he would contact the EEO Office again to make a complaint. We note that based on the Information Inquiry Form dated July 21, 2014, complainant appears to have initially been given misinformation from EEO regarding his options (that he had to choose either an administrative grievance or the EEO forum). EEOC Management Directive (MD)-110, Chapter 4, III (C) (rev. Aug. 2015), provides, in pertinent part, that "[t]here is nothing that prevents an employee from using an agency's administrative process, as opposed to a negotiated grievance process, and the EEO complaint process." In addition, the Agency does not address Complainant's assertion, on appeal that he contacted this EEO Officer in August 2014, to file an EEO complaint and was told to wait until a determination had been made on his administrative grievance. Based on these circumstances, we find that the Agency improperly dismissed Complainant's complaint for untimely EEO Counselor contact.
We REVERSE the Agency's final decision dismissing the formal complaint and we REMAND this matter to the Agency 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. | Octavio C.,1
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120151089
Agency No. ARSHAFTER14NOV04313
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated January 13, 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.
BACKGROUND
During the period at issue, Complainant worked as a Supervisory Sports Specialist at the Agency's Schofield Barracks in Hawaii.
On December 30, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Korean) and sex (male).
In its final decision dated December 30, 2015, the Agency determined that the formal complaint was comprised of the following claim:
On July 31 2014, [Complainant was] provided a Notice of Decision to Proposed Suspension for abusive or offensive conduct, gestures, or similar conduct.
The Agency dismissed the formal complaint on the grounds of untimely EEO Counselor contact. The Agency reasoned that Complainant initiated EEO contact on November 5, 2014, outside of the applicable time limit. In addition, the Agency dismissed the formal complaint on the alternate grounds that Complainant previously raised this matter in a grievance. Specifically, the Agency stated that on August 11, 2014, Complainant had submitted a third step Administrative grievance on this issue.
The instant appeal followed. On appeal, Complainant asserts that he initially spoke to a named EEO Officer in August 2014 to file an EEO complaint. However, Complainant asserts that he was told by the EEO Officer to wait until to a decision was rendered on his administrative grievance and then Complainant could go directly to the formal EEO process rather than the informal process.
In response, the Agency requests that we affirm its final decision dismissing Complainant's complaint. The Agency, however, does not respond to Complainant's assertion that he was provided with incorrect information from a named EEO Officer in August 2014.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.301(a) states 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 claims of discrimination to be raised in a negotiated grievance procedure, a person wishing to file a complaint or 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. An aggrieved employee who files a grievance with an agency whose negotiated agreement permits the acceptance of grievances which allege discrimination may not thereafter file a complaint on the same matter under this part 1614 irrespective of whether the agency has informed the individual of the need to elect or whether the grievance has raised an issue of discrimination.
The Agency improperly dismissed the formal complaint on the grounds that Complainant previously raised this matter in a grievance. Complainant raised this matter in an administrative grievance but not though a negotiated grievance procedure as set forth by the Commission's regulations. EEOC Management Directive (MD)-110, Chapter 4, III (C) (rev. Aug. 2015), provides, in pertinent part, that "[t]here is nothing that prevents an employee from using an agency's administrative process, as opposed to a negotiated grievance process, and the EEO complaint process."
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 Agency improperly dismissed the formal complaint on the grounds of untimely EEO Counselor contact. The July 31, 2014 Decision on Proposed Suspension lists August 4-August 17, 2014 as the effective dates of the suspension. Thus, Complainant's 45-day period to initiate EEO contact began on August 4, 2014. Complainant, on appeal, asserts that he contacted a named EEO Officer in August 2014, and that the EEO Officer told him to wait to pursue the EEO process until after a decision on his administrative grievance.
We further note that the record contains an "Information Inquiry form" reflecting that Complainant spoke to an EEO Officer on July 21, 2014 regarding his proposed suspension. Therein, it provides that Complainant was advised that he had options in the event he was suspended, an administrative grievance or EEO forum, but that he could not choose both. This form further provides that Complainant stated that he would contact the EEO Office again to make a complaint. We note that based on the Information Inquiry Form dated July 21, 2014, complainant appears to have initially been given misinformation from EEO regarding his options (that he had to choose either an administrative grievance or the EEO forum). EEOC Management Directive (MD)-110, Chapter 4, III (C) (rev. Aug. 2015), provides, in pertinent part, that "[t]here is nothing that prevents an employee from using an agency's administrative process, as opposed to a negotiated grievance process, and the EEO complaint process." In addition, the Agency does not address Complainant's assertion, on appeal that he contacted this EEO Officer in August 2014, to file an EEO complaint and was told to wait until a determination had been made on his administrative grievance. Based on these circumstances, we find that the Agency improperly dismissed Complainant's complaint for untimely EEO Counselor contact.
We REVERSE the Agency's final decision dismissing the formal complaint and we REMAND this matter to the Agency 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 Complainants 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 14, 2015
__________________
Date
------------------------------------------------------------
------------------------------------------------------------
012015-1089
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382 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01990734.txt | 01990734.txt | TXT | text/plain | 13,035 | October 6, 1998 | Appeal Number: 01990734
Background:
Appellant initiated contact with an EEO Counselor on May 19, 1998.
On August 24, 1998, appellant filed a formal EEO complaint wherein he
alleged that he had been discriminated against on the bases of his sex
(male), age (44), and race (white) when on December 17, 1997, he was
removed from employment with the agency. According to the EEO Counselor's
report, appellant stated that no one informed him that he had the right
to file an EEO complaint regarding his removal. Appellant stated that
he did not become aware of the EEO process until May 19, 1998, when
it was revealed to him through an outside source that he could file a
discrimination claim.
In its final decision, the agency dismissed 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 May 19, 1998, was
more than 45 days after his removal. According to the agency, appellant
should have been aware of the time limit for contacting an EEO Counselor
because posters setting forth the 45-day limitation period were clearly
on display at appellant's work facility.
On appeal, appellant argues that the majority of people at his facility
are of a different race. Appellant claims that due to his race, age,
and sex, the agency falsely accused him of not telling the truth on his
employment application.
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.
Appellant alleged that he was discriminated against when on December 17,
1997, he was removed from employment with the agency. Appellant did
not initiate contact with an EEO Counselor until May 19, 1998, after
the expiration of the 45-day limitation period. However, we note that
appellant claims that he was unaware that he had the right to file a
discrimination complaint with regard to his removal. Therefore, it
also becomes an issue as to whether appellant was aware of the 45-day
limitation period for contacting an EEO Counselor. We find that a
supplemental investigation is necessary in order to determine whether
appellant had constructive notice of the time period for contacting
an EEO Counselor.
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 on the grounds that appellant failed to contact an EEO Counselor in a timely manner. BACKGROUND Appellant initiated contact with an EEO Counselor on May 19, 1998. On August 24, 1998, appellant filed a formal EEO complaint wherein he alleged that he had been discriminated against on the bases of his sex (male), age (44), and race (white) when on December 17, 1997, he was removed from employment with the agency. According to the EEO Counselor's report, appellant stated that no one informed him that he had the right to file an EEO complaint regarding his removal. Appellant stated that he did not become aware of the EEO process until May 19, 1998, when it was revealed to him through an outside source that he could file a discrimination claim. In its final decision, the agency dismissed 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 May 19, 1998, was more than 45 days after his removal. According to the agency, appellant should have been aware of the time limit for contacting an EEO Counselor because posters setting forth the 45-day limitation period were clearly on display at appellant's work facility. On appeal, appellant argues that the majority of people at his facility are of a different race. Appellant claims that due to his race, age, and sex, the agency falsely accused him of not telling the truth on his employment application. 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. Appellant alleged that he was discriminated against when on December 17, 1997, he was removed from employment with the agency. Appellant did not initiate contact with an EEO Counselor until May 19, 1998, after the expiration of the 45-day limitation period. However, we note that appellant claims that he was unaware that he had the right to file a discrimination complaint with regard to his removal. Therefore, it also becomes an issue as to whether appellant was aware of the 45-day limitation period for contacting an EEO Counselor. We find that a supplemental investigation is necessary in order to determine whether appellant had constructive notice of the time period for contacting an EEO Counselor. Accordingly, the agency's decision to dismiss appellant's complaint on the grounds of untimely EEO contact is VACATED. | Dale K. Furby, )
Appellant, )
)
v. ) Appeal No. 01990734
) Agency No. 4-J-481-0144-98
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., and the Age Discrimination in Employment Act of
1967, as amended, 29 U.S.C. §621 et seq. The final agency decision was
issued on October 6, 1998. The appeal was postmarked November 4, 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 on the grounds that appellant failed to contact an EEO Counselor
in a timely manner.
BACKGROUND
Appellant initiated contact with an EEO Counselor on May 19, 1998.
On August 24, 1998, appellant filed a formal EEO complaint wherein he
alleged that he had been discriminated against on the bases of his sex
(male), age (44), and race (white) when on December 17, 1997, he was
removed from employment with the agency. According to the EEO Counselor's
report, appellant stated that no one informed him that he had the right
to file an EEO complaint regarding his removal. Appellant stated that
he did not become aware of the EEO process until May 19, 1998, when
it was revealed to him through an outside source that he could file a
discrimination claim.
In its final decision, the agency dismissed 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 May 19, 1998, was
more than 45 days after his removal. According to the agency, appellant
should have been aware of the time limit for contacting an EEO Counselor
because posters setting forth the 45-day limitation period were clearly
on display at appellant's work facility.
On appeal, appellant argues that the majority of people at his facility
are of a different race. Appellant claims that due to his race, age,
and sex, the agency falsely accused him of not telling the truth on his
employment application.
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.
Appellant alleged that he was discriminated against when on December 17,
1997, he was removed from employment with the agency. Appellant did
not initiate contact with an EEO Counselor until May 19, 1998, after
the expiration of the 45-day limitation period. However, we note that
appellant claims that he was unaware that he had the right to file a
discrimination complaint with regard to his removal. Therefore, it
also becomes an issue as to whether appellant was aware of the 45-day
limitation period for contacting an EEO Counselor. We find that a
supplemental investigation is necessary in order to determine whether
appellant had constructive notice of the time period for contacting
an EEO Counselor. Accordingly, the agency's decision to dismiss
appellant's complaint on the grounds of untimely EEO contact is VACATED.
This complaint is hereby REMANDED for further processing pursuant to
the ORDER below.
ORDER
The agency is ORDERED to conduct a supplemental investigation which
shall include the following actions:
The agency is ORDERED to conduct a supplemental investigation with regard
to the issue of when appellant had actual or constructive notice of the
time limit for contacting an EEO Counselor. The agency shall gather any
evidence necessary to show whether and when appellant had actual knowledge
or was put on constructive notice of the time limit for contacting an
EEO Counselor. The agency shall make a determination as to whether
appellant contacted an EEO Counselor in a timely manner after he had
actual or constructive notice of the time limit for contacting an EEO
Counselor. If an EEO poster was displayed at appellant's work facility
during the relevant period, then the agency shall supplement the record
with a copy of the EEO poster. The agency shall, within thirty (30)
calendar days of the date this decision becomes final, issue a notice
of processing or new final agency decision.
A copy of the notice of processing or 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:
July 30, 1999
DATE
Carlton
M. Hadden,
Acting
Director
Office of Federal Operations | [
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383 | https://www.eeoc.gov/sites/default/files/decisions/2022_01_12/2021004255.pdf | 2021004255.pdf | PDF | application/pdf | 16,985 | Jeannie T .,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation, Agency. | June 23, 2021 | Appeal Number: 2021004255
Background:
During the period at issue , Complainant worked as a Public Affairs Specialist, GS -12, in the
Office of External Affairs at the Agency's U.S. Merchant Marine Academy Administration in Kings Point, New York. On May 20, 2021, Complainant filed a formal EEO complaint claiming that th e Agency
subjected her to discrimination and/or harassment (non -sexual) based on sex and in reprisal for
prior protected EEO activity (a 2012 EEO complaint settlement; participating in an Agency investigation published in 2017; initiation of an EEO complai nt on June 24, 2019; and an August
2019 testimony given in an EEO investigation which resulted in a finding of discrimination dated January 11, 2021) when:
1. since approximately 2013, Complainant’s second level supervisor had subjected
her to disrespe ctful and hostile treatment and emails on an ongoing and consistent
basis because of Complainant’s participation in EEO activity;
2. management failed to take appropriate action after Complainant reported harassment by her second level supervisor on Septe mber 13, 2017, September 25,
2017, September 26, 2017, and October 31, 2017;
3. in 2014, management denied Complainant’s request for tuition reimbursement and repeatedly denied her request for a desk audit;
4. from approximately May 2014 to May 2018, Com plainant was de nied (i)
interviews and selection into GS -14 positions for which she competed and w as
referred to the section official and (ii) compensation and recognition for performing GS -14 duties;
5. in July 2020, management denied Complainant’s reque st for tuition
reimbursement;
6. since 2018, including on or about August 31, 2020, Complainant was denied a quality step increase;
7. in approximately October/November 2020, Complainant was not interviewed for
the position Director of Professional Development and Career Servic es, GS 14,
advertised under Vacancy Announcement No. MARAD -MMS -2020- 0033, after
her second level supervisor communicated negative information about her to
impede her career prospects;
8. in August 2020, Complainant’s request to be trained as a sexual assault victim
advocate was denied;
9. on unspecified dates, Complainant was not selected after being referred for consideration for the position Director of External Affairs, GS 14;
10. on or about April 5, 2021, Complainant learned that her first level supervisor discussed the instant complaint with an employee who shared details of the
conversation with a third party, including an assertion that her supervisor was trying to get rid of her; and
11. on unspecified dates, the Agency did not honor Complainant’s request to involve
her first level supervisor in the mediation of the instant complaint, and since the mediation of the instant complaint, her first level supervisor has treated her differently, including when on April 29, 2021 he excluded her from a series o f
meeti ngs with MARAD Public Affairs .
In its June 23, 2021 final decision, the Agency dismissed the formal complaint on multiple
procedural grounds. First, the Agency dismisse d allegations 1 through 9, pursuant to 29 C.F.R.
§ 1614.107(a)(2), for untimely EEO C ounselor contact. The Agency found that Complainant
initiated EEO Counselor contact on February 10, 2021, which it determined to be well beyond
the 45- day limitation period.
Second, the Agency dismissed allegations 1, 4, and 9, pursuant to 29 C.F.R. § 1614.107(a)(1).
Specifically, t he Agency determined that Complainant previously raised these claims in a prior
complaint, Agency No. 2019- 28211- MARAD- 01, which were adjudicated by t he Agency as well
as the Commission on appeal.
Final ly, the Agency dismis sed allegations 10 and 11, pursuant to 29 C.F.R. § 1614.107(a)(2).
The Agency found that Complainant did not raise these claims before an EEO Counselor, and
these claims were not like o r related to the counseled issues.
The instant appeal followed.
Legal Analysis:
the Commission on appeal.
Final ly, the Agency dismis sed allegations 10 and 11, pursuant to 29 C.F.R. § 1614.107(a)(2).
The Agency found that Complainant did not raise these claims before an EEO Counselor, and
these claims were not like o r related to the counseled issues.
The instant appeal followed.
ANALYSIS AND FINDINGS
Previously Raised Claims ( Allegations 1, 4, and 9)
EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides that the Agency shall dismiss an entire complaint that states the same claim that is pending before or has been decided by the agency or
the Commission.
The Agency properly dismissed allegations 1, 4, and 9, for raising the same matter that was
raised in a prior complaint (Agency No. 2019 -28211- MARAD- 01), which was subsequently
adjudicated by the Commission (EEOC Appeal No. 2019004992). O n appeal , Complainant does
not dispute that she previously raised these all egations in another complaint. Specifically ,
Complainant states, she “voluntarily let [her prior complaint] expire.” Therefore, we affirm the Agency’s dismissal of allegati ons 1, 4, 9 as previously raised claims in a prior complaint.
Claims Not Raised before EEO Counselor ( Allegations 10 and 11)
EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides that the Agency shall dismiss a claiming that has not been brought to the at tention of an EEO Counselor and is not like or related to the
matter that has been brought to the attention of the EEO Counselor.
A copy of the EEO Counselor’s report supports that Complainant did not raise allegations 10 and
11 during EEO counseling. A dditionally, these claims are not like or related given that they do
not clarify the other claims brought before the EEO Counse lor. I n the EEO Counselor’s report,
Complainant only identifies her second level supervisor (S2) as the responsible management
official and does not allege any claim s against her first level supervisor (S1) .
Specifically, the EEO Counselor’s report states that “[Complainant] does not allege that [S1 ]
subjected her to retaliation and does not want to involve him in this matter.” H owever, in claims
10 and 11, Complainant identifies S1 as the management off icial responsible for these alleged
incidents. Consequently, these allegations are not like or related to the claims Complainant
raised before the EEO Counselor. We find that th e allegations concerning S1 are not sufficiently
tied to Complainant ’s allegation of ongoing harassment by S2. Therefore, we affirm the
Agency’s dismissal of these allegations pursuant to 29 C.F.R. § 1614.107(a)(2).
Untimely EEO Counselor Contact ( Allegatio ns 1 through 9)
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 t he 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. The Commission has adopted a
“reasonable suspicion” standard (as opposed to a “supportive facts” stand ard) to determine when
the forty -five (4 5) 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 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.
Complainant initiated EEO Counselor contact on February 1 0, 2021. Consequently,
Complainant ’s claim of ongoing harassment , incorporating allegations 1 through 9, must have
occurred 45- days befo re Complainant initiated EEO Counselor contact, or by December 28,
2020,
2 in order to be timely raised. The last allegation at issue, claim 9 (non -selection)3 occurred
most recently, as stated in Complainant’s formal complaint, in October/November 2020 whe n
she was determined to be qualified for the position and referred for consideration, but was never
2 Because 45 -days before the initial EEO contact fell on Sunday, December 27, 2020, the last
possible date for a timely claim was extended to the following business day, Monday, December 28, 2020.
3 Complainant stated in her affidavit that she was denied the opportunity to interview for the GS -
14, Director of Professional Development and Career Services position in October/November 2020. Complainant also stated in her affidavit that she confronted management in September 2017, regarding the reason she was denied an interview for the Director of External Affairs
position.
interviewed. Because this incident occurred before Decem ber 28, 2020, it was untimely raised
with an EEO Counselor .
However, Complainant asserts on appea l that she did not reasonably suspect that she was denied
an interview and ultimately not selected for the position until January 2021. Specifically,
Compla inant asserts that on January 18, 2021, she read a copy of a final Agency decision finding
indicating, in pertinent part, that S2 had subjected Complainant’s co -worker (CW1) to retaliatory
harassment . Complainant further asserts that she participated as a witness in CW1’s complaint
and she became aware that management , specifically S2, knew about her participation before she
had applied for the position at issue because an investigation into CW1’s complaint occurred
from M ay 22, 2019 and August 16, 2019.
Despite her arguments to the contrary, our review of the record reflects that Complainant should
have reasonably suspected that she has been discriminated against before January 2021.
Complainant noted in her affidavit that she was ide ntified as qualified and referred to the
position as early as October/November 2019. Additionally, Complainant indicat ed that she
previously had not been interviewed for another position and she questioned management in September 2017, regarding being denied an interview for another position. Moreover,
Complainant has repeatedly identified S2 as the responsible management official for the relevant claims and noted that S2 was the selecting official for the position referenced in claim 9.
Complainant has c ited other instances where S2 was aware of her prior EEO activity before she
became aware of the January 2021 final decision. Notably, Complainant has alleged a history of retaliatory harassment by S2 since 2013. Consequently, Complainant sh ould have had a
reasonable suspicion as early as October/November 2020 of retaliatory harassment by S2
because of this history, and because S2 was the selecting official for the position at issue.
Complainant has alleged that she was subjected to discriminatory and retaliatory harassment. However, because the last alleged incident did not occur within the 45- day limitation period, the
claims at issue cannot collectively constitute an ac tionable claim of harassment. Therefore, we
affirm the Agency’s dismissal of Complainant ’s claim on ongoing harassment ( allegations 1 – 9)
for u ntimely EEO Counselor contact. | Jeannie T .,1
Complainant,
v.
Pete Buttigieg,
Secretary,
Department of Transportation,
Agency.
Appeal No. 2021004255
Agency No. 2021-29056- MARAD- 01
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated June 23, 2021, dismissing a formal
complaint alleging unlawf ul 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 Public Affairs Specialist, GS -12, in the
Office of External Affairs at the Agency's U.S. Merchant Marine Academy Administration in Kings Point, New York. On May 20, 2021, Complainant filed a formal EEO complaint claiming that th e Agency
subjected her to discrimination and/or harassment (non -sexual) based on sex and in reprisal for
prior protected EEO activity (a 2012 EEO complaint settlement; participating in an Agency investigation published in 2017; initiation of an EEO complai nt on June 24, 2019; and an August
2019 testimony given in an EEO investigation which resulted in a finding of discrimination dated January 11, 2021) when:
1. since approximately 2013, Complainant’s second level supervisor had subjected
her to disrespe ctful and hostile treatment and emails on an ongoing and consistent
basis because of Complainant’s participation in EEO activity;
2. management failed to take appropriate action after Complainant reported harassment by her second level supervisor on Septe mber 13, 2017, September 25,
2017, September 26, 2017, and October 31, 2017;
3. in 2014, management denied Complainant’s request for tuition reimbursement and repeatedly denied her request for a desk audit;
4. from approximately May 2014 to May 2018, Com plainant was de nied (i)
interviews and selection into GS -14 positions for which she competed and w as
referred to the section official and (ii) compensation and recognition for performing GS -14 duties;
5. in July 2020, management denied Complainant’s reque st for tuition
reimbursement;
6. since 2018, including on or about August 31, 2020, Complainant was denied a quality step increase;
7. in approximately October/November 2020, Complainant was not interviewed for
the position Director of Professional Development and Career Servic es, GS 14,
advertised under Vacancy Announcement No. MARAD -MMS -2020- 0033, after
her second level supervisor communicated negative information about her to
impede her career prospects;
8. in August 2020, Complainant’s request to be trained as a sexual assault victim
advocate was denied;
9. on unspecified dates, Complainant was not selected after being referred for consideration for the position Director of External Affairs, GS 14;
10. on or about April 5, 2021, Complainant learned that her first level supervisor discussed the instant complaint with an employee who shared details of the
conversation with a third party, including an assertion that her supervisor was trying to get rid of her; and
11. on unspecified dates, the Agency did not honor Complainant’s request to involve
her first level supervisor in the mediation of the instant complaint, and since the mediation of the instant complaint, her first level supervisor has treated her differently, including when on April 29, 2021 he excluded her from a series o f
meeti ngs with MARAD Public Affairs .
In its June 23, 2021 final decision, the Agency dismissed the formal complaint on multiple
procedural grounds. First, the Agency dismisse d allegations 1 through 9, pursuant to 29 C.F.R.
§ 1614.107(a)(2), for untimely EEO C ounselor contact. The Agency found that Complainant
initiated EEO Counselor contact on February 10, 2021, which it determined to be well beyond
the 45- day limitation period.
Second, the Agency dismissed allegations 1, 4, and 9, pursuant to 29 C.F.R. § 1614.107(a)(1).
Specifically, t he Agency determined that Complainant previously raised these claims in a prior
complaint, Agency No. 2019- 28211- MARAD- 01, which were adjudicated by t he Agency as well
as the Commission on appeal.
Final ly, the Agency dismis sed allegations 10 and 11, pursuant to 29 C.F.R. § 1614.107(a)(2).
The Agency found that Complainant did not raise these claims before an EEO Counselor, and
these claims were not like o r related to the counseled issues.
The instant appeal followed.
ANALYSIS AND FINDINGS
Previously Raised Claims ( Allegations 1, 4, and 9)
EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides that the Agency shall dismiss an entire complaint that states the same claim that is pending before or has been decided by the agency or
the Commission.
The Agency properly dismissed allegations 1, 4, and 9, for raising the same matter that was
raised in a prior complaint (Agency No. 2019 -28211- MARAD- 01), which was subsequently
adjudicated by the Commission (EEOC Appeal No. 2019004992). O n appeal , Complainant does
not dispute that she previously raised these all egations in another complaint. Specifically ,
Complainant states, she “voluntarily let [her prior complaint] expire.” Therefore, we affirm the Agency’s dismissal of allegati ons 1, 4, 9 as previously raised claims in a prior complaint.
Claims Not Raised before EEO Counselor ( Allegations 10 and 11)
EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides that the Agency shall dismiss a claiming that has not been brought to the at tention of an EEO Counselor and is not like or related to the
matter that has been brought to the attention of the EEO Counselor.
A copy of the EEO Counselor’s report supports that Complainant did not raise allegations 10 and
11 during EEO counseling. A dditionally, these claims are not like or related given that they do
not clarify the other claims brought before the EEO Counse lor. I n the EEO Counselor’s report,
Complainant only identifies her second level supervisor (S2) as the responsible management
official and does not allege any claim s against her first level supervisor (S1) .
Specifically, the EEO Counselor’s report states that “[Complainant] does not allege that [S1 ]
subjected her to retaliation and does not want to involve him in this matter.” H owever, in claims
10 and 11, Complainant identifies S1 as the management off icial responsible for these alleged
incidents. Consequently, these allegations are not like or related to the claims Complainant
raised before the EEO Counselor. We find that th e allegations concerning S1 are not sufficiently
tied to Complainant ’s allegation of ongoing harassment by S2. Therefore, we affirm the
Agency’s dismissal of these allegations pursuant to 29 C.F.R. § 1614.107(a)(2).
Untimely EEO Counselor Contact ( Allegatio ns 1 through 9)
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 t he 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. The Commission has adopted a
“reasonable suspicion” standard (as opposed to a “supportive facts” stand ard) to determine when
the forty -five (4 5) 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 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.
Complainant initiated EEO Counselor contact on February 1 0, 2021. Consequently,
Complainant ’s claim of ongoing harassment , incorporating allegations 1 through 9, must have
occurred 45- days befo re Complainant initiated EEO Counselor contact, or by December 28,
2020,
2 in order to be timely raised. The last allegation at issue, claim 9 (non -selection)3 occurred
most recently, as stated in Complainant’s formal complaint, in October/November 2020 whe n
she was determined to be qualified for the position and referred for consideration, but was never
2 Because 45 -days before the initial EEO contact fell on Sunday, December 27, 2020, the last
possible date for a timely claim was extended to the following business day, Monday, December 28, 2020.
3 Complainant stated in her affidavit that she was denied the opportunity to interview for the GS -
14, Director of Professional Development and Career Services position in October/November 2020. Complainant also stated in her affidavit that she confronted management in September 2017, regarding the reason she was denied an interview for the Director of External Affairs
position.
interviewed. Because this incident occurred before Decem ber 28, 2020, it was untimely raised
with an EEO Counselor .
However, Complainant asserts on appea l that she did not reasonably suspect that she was denied
an interview and ultimately not selected for the position until January 2021. Specifically,
Compla inant asserts that on January 18, 2021, she read a copy of a final Agency decision finding
indicating, in pertinent part, that S2 had subjected Complainant’s co -worker (CW1) to retaliatory
harassment . Complainant further asserts that she participated as a witness in CW1’s complaint
and she became aware that management , specifically S2, knew about her participation before she
had applied for the position at issue because an investigation into CW1’s complaint occurred
from M ay 22, 2019 and August 16, 2019.
Despite her arguments to the contrary, our review of the record reflects that Complainant should
have reasonably suspected that she has been discriminated against before January 2021.
Complainant noted in her affidavit that she was ide ntified as qualified and referred to the
position as early as October/November 2019. Additionally, Complainant indicat ed that she
previously had not been interviewed for another position and she questioned management in September 2017, regarding being denied an interview for another position. Moreover,
Complainant has repeatedly identified S2 as the responsible management official for the relevant claims and noted that S2 was the selecting official for the position referenced in claim 9.
Complainant has c ited other instances where S2 was aware of her prior EEO activity before she
became aware of the January 2021 final decision. Notably, Complainant has alleged a history of retaliatory harassment by S2 since 2013. Consequently, Complainant sh ould have had a
reasonable suspicion as early as October/November 2020 of retaliatory harassment by S2
because of this history, and because S2 was the selecting official for the position at issue.
Complainant has alleged that she was subjected to discriminatory and retaliatory harassment. However, because the last alleged incident did not occur within the 45- day limitation period, the
claims at issue cannot collectively constitute an ac tionable claim of harassment. Therefore, we
affirm the Agency’s dismissal of Complainant ’s claim on ongoing harassment ( allegations 1 – 9)
for u ntimely EEO Counselor contact.
CONCLUSION
The Agency’s fi nal decision dismissing the formal complaint on the grounds discussed above is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0920)
The Commission may, in its discretion, reconsider this appellate decision if Complainant or the
Agency subm its 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 pol icies, 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,
Wash ington, DC 20507. In t he 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 agenc y’s request for reconsi deration 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 untimel y, unless extenuating c ircumstances 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 deadli ne 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 c ivil 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 app ointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny the se types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainan t’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 2 9, 2021
Date | [
"Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999)",
"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. § 1614.403(g)",
"29 C.F.R. § 1614.604(c)",
"42 U.S.C. § 2000e"
] | [
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0.04263003170490265,
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0.028868798166513443,
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384 | https://www.eeoc.gov/sites/default/files/decisions/2022_03_02/2021004255.pdf | 2021004255.pdf | PDF | application/pdf | 16,985 | Jeannie T .,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation, Agency. | June 23, 2021 | Appeal Number: 2021004255
Background:
During the period at issue , Complainant worked as a Public Affairs Specialist, GS -12, in the
Office of External Affairs at the Agency's U.S. Merchant Marine Academy Administration in Kings Point, New York. On May 20, 2021, Complainant filed a formal EEO complaint claiming that th e Agency
subjected her to discrimination and/or harassment (non -sexual) based on sex and in reprisal for
prior protected EEO activity (a 2012 EEO complaint settlement; participating in an Agency investigation published in 2017; initiation of an EEO complai nt on June 24, 2019; and an August
2019 testimony given in an EEO investigation which resulted in a finding of discrimination dated January 11, 2021) when:
1. since approximately 2013, Complainant’s second level supervisor had subjected
her to disrespe ctful and hostile treatment and emails on an ongoing and consistent
basis because of Complainant’s participation in EEO activity;
2. management failed to take appropriate action after Complainant reported harassment by her second level supervisor on Septe mber 13, 2017, September 25,
2017, September 26, 2017, and October 31, 2017;
3. in 2014, management denied Complainant’s request for tuition reimbursement and repeatedly denied her request for a desk audit;
4. from approximately May 2014 to May 2018, Com plainant was de nied (i)
interviews and selection into GS -14 positions for which she competed and w as
referred to the section official and (ii) compensation and recognition for performing GS -14 duties;
5. in July 2020, management denied Complainant’s reque st for tuition
reimbursement;
6. since 2018, including on or about August 31, 2020, Complainant was denied a quality step increase;
7. in approximately October/November 2020, Complainant was not interviewed for
the position Director of Professional Development and Career Servic es, GS 14,
advertised under Vacancy Announcement No. MARAD -MMS -2020- 0033, after
her second level supervisor communicated negative information about her to
impede her career prospects;
8. in August 2020, Complainant’s request to be trained as a sexual assault victim
advocate was denied;
9. on unspecified dates, Complainant was not selected after being referred for consideration for the position Director of External Affairs, GS 14;
10. on or about April 5, 2021, Complainant learned that her first level supervisor discussed the instant complaint with an employee who shared details of the
conversation with a third party, including an assertion that her supervisor was trying to get rid of her; and
11. on unspecified dates, the Agency did not honor Complainant’s request to involve
her first level supervisor in the mediation of the instant complaint, and since the mediation of the instant complaint, her first level supervisor has treated her differently, including when on April 29, 2021 he excluded her from a series o f
meeti ngs with MARAD Public Affairs .
In its June 23, 2021 final decision, the Agency dismissed the formal complaint on multiple
procedural grounds. First, the Agency dismisse d allegations 1 through 9, pursuant to 29 C.F.R.
§ 1614.107(a)(2), for untimely EEO C ounselor contact. The Agency found that Complainant
initiated EEO Counselor contact on February 10, 2021, which it determined to be well beyond
the 45- day limitation period.
Second, the Agency dismissed allegations 1, 4, and 9, pursuant to 29 C.F.R. § 1614.107(a)(1).
Specifically, t he Agency determined that Complainant previously raised these claims in a prior
complaint, Agency No. 2019- 28211- MARAD- 01, which were adjudicated by t he Agency as well
as the Commission on appeal.
Final ly, the Agency dismis sed allegations 10 and 11, pursuant to 29 C.F.R. § 1614.107(a)(2).
The Agency found that Complainant did not raise these claims before an EEO Counselor, and
these claims were not like o r related to the counseled issues.
The instant appeal followed.
Legal Analysis:
the Commission on appeal.
Final ly, the Agency dismis sed allegations 10 and 11, pursuant to 29 C.F.R. § 1614.107(a)(2).
The Agency found that Complainant did not raise these claims before an EEO Counselor, and
these claims were not like o r related to the counseled issues.
The instant appeal followed.
ANALYSIS AND FINDINGS
Previously Raised Claims ( Allegations 1, 4, and 9)
EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides that the Agency shall dismiss an entire complaint that states the same claim that is pending before or has been decided by the agency or
the Commission.
The Agency properly dismissed allegations 1, 4, and 9, for raising the same matter that was
raised in a prior complaint (Agency No. 2019 -28211- MARAD- 01), which was subsequently
adjudicated by the Commission (EEOC Appeal No. 2019004992). O n appeal , Complainant does
not dispute that she previously raised these all egations in another complaint. Specifically ,
Complainant states, she “voluntarily let [her prior complaint] expire.” Therefore, we affirm the Agency’s dismissal of allegati ons 1, 4, 9 as previously raised claims in a prior complaint.
Claims Not Raised before EEO Counselor ( Allegations 10 and 11)
EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides that the Agency shall dismiss a claiming that has not been brought to the at tention of an EEO Counselor and is not like or related to the
matter that has been brought to the attention of the EEO Counselor.
A copy of the EEO Counselor’s report supports that Complainant did not raise allegations 10 and
11 during EEO counseling. A dditionally, these claims are not like or related given that they do
not clarify the other claims brought before the EEO Counse lor. I n the EEO Counselor’s report,
Complainant only identifies her second level supervisor (S2) as the responsible management
official and does not allege any claim s against her first level supervisor (S1) .
Specifically, the EEO Counselor’s report states that “[Complainant] does not allege that [S1 ]
subjected her to retaliation and does not want to involve him in this matter.” H owever, in claims
10 and 11, Complainant identifies S1 as the management off icial responsible for these alleged
incidents. Consequently, these allegations are not like or related to the claims Complainant
raised before the EEO Counselor. We find that th e allegations concerning S1 are not sufficiently
tied to Complainant ’s allegation of ongoing harassment by S2. Therefore, we affirm the
Agency’s dismissal of these allegations pursuant to 29 C.F.R. § 1614.107(a)(2).
Untimely EEO Counselor Contact ( Allegatio ns 1 through 9)
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 t he 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. The Commission has adopted a
“reasonable suspicion” standard (as opposed to a “supportive facts” stand ard) to determine when
the forty -five (4 5) 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 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.
Complainant initiated EEO Counselor contact on February 1 0, 2021. Consequently,
Complainant ’s claim of ongoing harassment , incorporating allegations 1 through 9, must have
occurred 45- days befo re Complainant initiated EEO Counselor contact, or by December 28,
2020,
2 in order to be timely raised. The last allegation at issue, claim 9 (non -selection)3 occurred
most recently, as stated in Complainant’s formal complaint, in October/November 2020 whe n
she was determined to be qualified for the position and referred for consideration, but was never
2 Because 45 -days before the initial EEO contact fell on Sunday, December 27, 2020, the last
possible date for a timely claim was extended to the following business day, Monday, December 28, 2020.
3 Complainant stated in her affidavit that she was denied the opportunity to interview for the GS -
14, Director of Professional Development and Career Services position in October/November 2020. Complainant also stated in her affidavit that she confronted management in September 2017, regarding the reason she was denied an interview for the Director of External Affairs
position.
interviewed. Because this incident occurred before Decem ber 28, 2020, it was untimely raised
with an EEO Counselor .
However, Complainant asserts on appea l that she did not reasonably suspect that she was denied
an interview and ultimately not selected for the position until January 2021. Specifically,
Compla inant asserts that on January 18, 2021, she read a copy of a final Agency decision finding
indicating, in pertinent part, that S2 had subjected Complainant’s co -worker (CW1) to retaliatory
harassment . Complainant further asserts that she participated as a witness in CW1’s complaint
and she became aware that management , specifically S2, knew about her participation before she
had applied for the position at issue because an investigation into CW1’s complaint occurred
from M ay 22, 2019 and August 16, 2019.
Despite her arguments to the contrary, our review of the record reflects that Complainant should
have reasonably suspected that she has been discriminated against before January 2021.
Complainant noted in her affidavit that she was ide ntified as qualified and referred to the
position as early as October/November 2019. Additionally, Complainant indicat ed that she
previously had not been interviewed for another position and she questioned management in September 2017, regarding being denied an interview for another position. Moreover,
Complainant has repeatedly identified S2 as the responsible management official for the relevant claims and noted that S2 was the selecting official for the position referenced in claim 9.
Complainant has c ited other instances where S2 was aware of her prior EEO activity before she
became aware of the January 2021 final decision. Notably, Complainant has alleged a history of retaliatory harassment by S2 since 2013. Consequently, Complainant sh ould have had a
reasonable suspicion as early as October/November 2020 of retaliatory harassment by S2
because of this history, and because S2 was the selecting official for the position at issue.
Complainant has alleged that she was subjected to discriminatory and retaliatory harassment. However, because the last alleged incident did not occur within the 45- day limitation period, the
claims at issue cannot collectively constitute an ac tionable claim of harassment. Therefore, we
affirm the Agency’s dismissal of Complainant ’s claim on ongoing harassment ( allegations 1 – 9)
for u ntimely EEO Counselor contact. | Jeannie T .,1
Complainant,
v.
Pete Buttigieg,
Secretary,
Department of Transportation,
Agency.
Appeal No. 2021004255
Agency No. 2021-29056- MARAD- 01
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated June 23, 2021, dismissing a formal
complaint alleging unlawf ul 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 Public Affairs Specialist, GS -12, in the
Office of External Affairs at the Agency's U.S. Merchant Marine Academy Administration in Kings Point, New York. On May 20, 2021, Complainant filed a formal EEO complaint claiming that th e Agency
subjected her to discrimination and/or harassment (non -sexual) based on sex and in reprisal for
prior protected EEO activity (a 2012 EEO complaint settlement; participating in an Agency investigation published in 2017; initiation of an EEO complai nt on June 24, 2019; and an August
2019 testimony given in an EEO investigation which resulted in a finding of discrimination dated January 11, 2021) when:
1. since approximately 2013, Complainant’s second level supervisor had subjected
her to disrespe ctful and hostile treatment and emails on an ongoing and consistent
basis because of Complainant’s participation in EEO activity;
2. management failed to take appropriate action after Complainant reported harassment by her second level supervisor on Septe mber 13, 2017, September 25,
2017, September 26, 2017, and October 31, 2017;
3. in 2014, management denied Complainant’s request for tuition reimbursement and repeatedly denied her request for a desk audit;
4. from approximately May 2014 to May 2018, Com plainant was de nied (i)
interviews and selection into GS -14 positions for which she competed and w as
referred to the section official and (ii) compensation and recognition for performing GS -14 duties;
5. in July 2020, management denied Complainant’s reque st for tuition
reimbursement;
6. since 2018, including on or about August 31, 2020, Complainant was denied a quality step increase;
7. in approximately October/November 2020, Complainant was not interviewed for
the position Director of Professional Development and Career Servic es, GS 14,
advertised under Vacancy Announcement No. MARAD -MMS -2020- 0033, after
her second level supervisor communicated negative information about her to
impede her career prospects;
8. in August 2020, Complainant’s request to be trained as a sexual assault victim
advocate was denied;
9. on unspecified dates, Complainant was not selected after being referred for consideration for the position Director of External Affairs, GS 14;
10. on or about April 5, 2021, Complainant learned that her first level supervisor discussed the instant complaint with an employee who shared details of the
conversation with a third party, including an assertion that her supervisor was trying to get rid of her; and
11. on unspecified dates, the Agency did not honor Complainant’s request to involve
her first level supervisor in the mediation of the instant complaint, and since the mediation of the instant complaint, her first level supervisor has treated her differently, including when on April 29, 2021 he excluded her from a series o f
meeti ngs with MARAD Public Affairs .
In its June 23, 2021 final decision, the Agency dismissed the formal complaint on multiple
procedural grounds. First, the Agency dismisse d allegations 1 through 9, pursuant to 29 C.F.R.
§ 1614.107(a)(2), for untimely EEO C ounselor contact. The Agency found that Complainant
initiated EEO Counselor contact on February 10, 2021, which it determined to be well beyond
the 45- day limitation period.
Second, the Agency dismissed allegations 1, 4, and 9, pursuant to 29 C.F.R. § 1614.107(a)(1).
Specifically, t he Agency determined that Complainant previously raised these claims in a prior
complaint, Agency No. 2019- 28211- MARAD- 01, which were adjudicated by t he Agency as well
as the Commission on appeal.
Final ly, the Agency dismis sed allegations 10 and 11, pursuant to 29 C.F.R. § 1614.107(a)(2).
The Agency found that Complainant did not raise these claims before an EEO Counselor, and
these claims were not like o r related to the counseled issues.
The instant appeal followed.
ANALYSIS AND FINDINGS
Previously Raised Claims ( Allegations 1, 4, and 9)
EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides that the Agency shall dismiss an entire complaint that states the same claim that is pending before or has been decided by the agency or
the Commission.
The Agency properly dismissed allegations 1, 4, and 9, for raising the same matter that was
raised in a prior complaint (Agency No. 2019 -28211- MARAD- 01), which was subsequently
adjudicated by the Commission (EEOC Appeal No. 2019004992). O n appeal , Complainant does
not dispute that she previously raised these all egations in another complaint. Specifically ,
Complainant states, she “voluntarily let [her prior complaint] expire.” Therefore, we affirm the Agency’s dismissal of allegati ons 1, 4, 9 as previously raised claims in a prior complaint.
Claims Not Raised before EEO Counselor ( Allegations 10 and 11)
EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides that the Agency shall dismiss a claiming that has not been brought to the at tention of an EEO Counselor and is not like or related to the
matter that has been brought to the attention of the EEO Counselor.
A copy of the EEO Counselor’s report supports that Complainant did not raise allegations 10 and
11 during EEO counseling. A dditionally, these claims are not like or related given that they do
not clarify the other claims brought before the EEO Counse lor. I n the EEO Counselor’s report,
Complainant only identifies her second level supervisor (S2) as the responsible management
official and does not allege any claim s against her first level supervisor (S1) .
Specifically, the EEO Counselor’s report states that “[Complainant] does not allege that [S1 ]
subjected her to retaliation and does not want to involve him in this matter.” H owever, in claims
10 and 11, Complainant identifies S1 as the management off icial responsible for these alleged
incidents. Consequently, these allegations are not like or related to the claims Complainant
raised before the EEO Counselor. We find that th e allegations concerning S1 are not sufficiently
tied to Complainant ’s allegation of ongoing harassment by S2. Therefore, we affirm the
Agency’s dismissal of these allegations pursuant to 29 C.F.R. § 1614.107(a)(2).
Untimely EEO Counselor Contact ( Allegatio ns 1 through 9)
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 t he 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. The Commission has adopted a
“reasonable suspicion” standard (as opposed to a “supportive facts” stand ard) to determine when
the forty -five (4 5) 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 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.
Complainant initiated EEO Counselor contact on February 1 0, 2021. Consequently,
Complainant ’s claim of ongoing harassment , incorporating allegations 1 through 9, must have
occurred 45- days befo re Complainant initiated EEO Counselor contact, or by December 28,
2020,
2 in order to be timely raised. The last allegation at issue, claim 9 (non -selection)3 occurred
most recently, as stated in Complainant’s formal complaint, in October/November 2020 whe n
she was determined to be qualified for the position and referred for consideration, but was never
2 Because 45 -days before the initial EEO contact fell on Sunday, December 27, 2020, the last
possible date for a timely claim was extended to the following business day, Monday, December 28, 2020.
3 Complainant stated in her affidavit that she was denied the opportunity to interview for the GS -
14, Director of Professional Development and Career Services position in October/November 2020. Complainant also stated in her affidavit that she confronted management in September 2017, regarding the reason she was denied an interview for the Director of External Affairs
position.
interviewed. Because this incident occurred before Decem ber 28, 2020, it was untimely raised
with an EEO Counselor .
However, Complainant asserts on appea l that she did not reasonably suspect that she was denied
an interview and ultimately not selected for the position until January 2021. Specifically,
Compla inant asserts that on January 18, 2021, she read a copy of a final Agency decision finding
indicating, in pertinent part, that S2 had subjected Complainant’s co -worker (CW1) to retaliatory
harassment . Complainant further asserts that she participated as a witness in CW1’s complaint
and she became aware that management , specifically S2, knew about her participation before she
had applied for the position at issue because an investigation into CW1’s complaint occurred
from M ay 22, 2019 and August 16, 2019.
Despite her arguments to the contrary, our review of the record reflects that Complainant should
have reasonably suspected that she has been discriminated against before January 2021.
Complainant noted in her affidavit that she was ide ntified as qualified and referred to the
position as early as October/November 2019. Additionally, Complainant indicat ed that she
previously had not been interviewed for another position and she questioned management in September 2017, regarding being denied an interview for another position. Moreover,
Complainant has repeatedly identified S2 as the responsible management official for the relevant claims and noted that S2 was the selecting official for the position referenced in claim 9.
Complainant has c ited other instances where S2 was aware of her prior EEO activity before she
became aware of the January 2021 final decision. Notably, Complainant has alleged a history of retaliatory harassment by S2 since 2013. Consequently, Complainant sh ould have had a
reasonable suspicion as early as October/November 2020 of retaliatory harassment by S2
because of this history, and because S2 was the selecting official for the position at issue.
Complainant has alleged that she was subjected to discriminatory and retaliatory harassment. However, because the last alleged incident did not occur within the 45- day limitation period, the
claims at issue cannot collectively constitute an ac tionable claim of harassment. Therefore, we
affirm the Agency’s dismissal of Complainant ’s claim on ongoing harassment ( allegations 1 – 9)
for u ntimely EEO Counselor contact.
CONCLUSION
The Agency’s fi nal decision dismissing the formal complaint on the grounds discussed above is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0920)
The Commission may, in its discretion, reconsider this appellate decision if Complainant or the
Agency subm its 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 pol icies, 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,
Wash ington, DC 20507. In t he 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 agenc y’s request for reconsi deration 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 untimel y, unless extenuating c ircumstances 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 deadli ne 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 c ivil 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 app ointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny the se types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainan t’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 2 9, 2021
Date | [
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"29 C.F.R. § 1614.403(g)",
"29 C.F.R. § 1614.604(c)",
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385 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a54170.txt | 01a54170.txt | TXT | text/plain | 7,053 | Vienna M. Baches v. U.S. Department of Agriculture 01A54170 November 16, 2005 . Vienna M. Baches, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency. | November 16, 2005 | Appeal Number: 01A54170
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), on the grounds
of untimely EEO Counselor contact.
By letter dated June 3, 2003, complainant contacted the Commission,
claiming that on March 21, 2003, the agency terminated her from her agency
position, due to her disability. By letter to the agency's Office of
Civil Rights (OCR) dated June 25, 2003, complainant stated that she was
provided with the agency's address by the Commission, and addressed the
matter that was the subject of her letter to the Commission, dated June
3, 2003.
By letter dated April 9, 2004, the agency's OCR noted that it had
received copies of complainant's letters of June 3, 2003, and June 25,
2003, referenced above. The OCR noted that complainant's letters were
received by OCR on March 23, 2004, but that there was no record of receipt
of the letters prior to that date. The OCR indicated that complainant's
correspondence was forwarded to an appropriate office for processing,
noting that complainant's discrimination claims had not yet been raised
with an agency EEO Counselor.
The record contains an EEO Counselor's Report, identifying the date
of initial EEO contact in the following fashion: 6/18/04 with
this EEO Counselor; and (6/03/03 with EEOC). The EEO Counselor's
Report indicated that complainant claimed that she was the victim of
unlawful employment discrimination on the basis of disability when :
(1) complainant was not promoted during her Student Career Experience
Program appointment, (2) she was not converted to full time employment,
and (3) her appointment was terminated on March 21, 2003, resulting
in loss of employment with the agency. Informal efforts to resolve the
matter was unsuccessful and on September 12, 2004, complainant filed
the instant EEO complaint.
On April 19, 2005, the agency issued a final decision, dismissing the
instant complaint on the grounds of untimely EEO Counselor contact.
The record in this case contains a copy of a memorandum from an agency
official dated March 23, 2005, accompanied by a copy of an EEO poster
that addresses the forty-five day period for timely contacting an EEO
Counselor. The agency official stated that this poster was posted in
areas commonly available to complainant from January 1, 2003, through
April 2003.
The record discloses that the most recent alleged discriminatory event
occurred on March 21, 2003. The record indicates that complainant wrote
a letter to the Commission on June 3, 2003, and to the agency's Office
of Civil Right's on June 25, 2003. However, even if the Commission
were to presume that complainant actually initiated EEO contact with
the agency in June 2003, such a contact would have been well beyond the
forty -five day limitation period with regard to the matters raised in the
instant complaint. We note, moreover, that complainant's correspondence
to the Commission on June 3, 2003, was also 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.
The agency's final decision dismissing complainant's complaint on the
grounds of untimely EEO contact is AFFIRMED. | Vienna M. Baches v. U.S. Department of Agriculture
01A54170
November 16, 2005
.
Vienna M. Baches,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A54170
Agency No. 040683
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), on the grounds
of untimely EEO Counselor contact.
By letter dated June 3, 2003, complainant contacted the Commission,
claiming that on March 21, 2003, the agency terminated her from her agency
position, due to her disability. By letter to the agency's Office of
Civil Rights (OCR) dated June 25, 2003, complainant stated that she was
provided with the agency's address by the Commission, and addressed the
matter that was the subject of her letter to the Commission, dated June
3, 2003.
By letter dated April 9, 2004, the agency's OCR noted that it had
received copies of complainant's letters of June 3, 2003, and June 25,
2003, referenced above. The OCR noted that complainant's letters were
received by OCR on March 23, 2004, but that there was no record of receipt
of the letters prior to that date. The OCR indicated that complainant's
correspondence was forwarded to an appropriate office for processing,
noting that complainant's discrimination claims had not yet been raised
with an agency EEO Counselor.
The record contains an EEO Counselor's Report, identifying the date
of initial EEO contact in the following fashion: 6/18/04 with
this EEO Counselor; and (6/03/03 with EEOC). The EEO Counselor's
Report indicated that complainant claimed that she was the victim of
unlawful employment discrimination on the basis of disability when :
(1) complainant was not promoted during her Student Career Experience
Program appointment, (2) she was not converted to full time employment,
and (3) her appointment was terminated on March 21, 2003, resulting
in loss of employment with the agency. Informal efforts to resolve the
matter was unsuccessful and on September 12, 2004, complainant filed
the instant EEO complaint.
On April 19, 2005, the agency issued a final decision, dismissing the
instant complaint on the grounds of untimely EEO Counselor contact.
The record in this case contains a copy of a memorandum from an agency
official dated March 23, 2005, accompanied by a copy of an EEO poster
that addresses the forty-five day period for timely contacting an EEO
Counselor. The agency official stated that this poster was posted in
areas commonly available to complainant from January 1, 2003, through
April 2003.
The record discloses that the most recent alleged discriminatory event
occurred on March 21, 2003. The record indicates that complainant wrote
a letter to the Commission on June 3, 2003, and to the agency's Office
of Civil Right's on June 25, 2003. However, even if the Commission
were to presume that complainant actually initiated EEO contact with
the agency in June 2003, such a contact would have been well beyond the
forty -five day limitation period with regard to the matters raised in the
instant complaint. We note, moreover, that complainant's correspondence
to the Commission on June 3, 2003, was also 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.
The agency's final decision dismissing complainant's complaint on the
grounds of untimely EEO 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
November 16, 2005
__________________
Date
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386 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120080682.txt | 0120080682.txt | TXT | text/plain | 7,691 | Andre R. Moore, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. | October 16, 2007 | Appeal Number: 0120080682
Case Facts:
Complainant filed a timely appeal with this Commission from the agency's
decision dated October 16, 2007, 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 (African-American),
sex (male), age (over 40 years old), and in reprisal for prior protected
EEO activity when the Human Resources Department notified complainant on
July 29, 2005 that he did not qualify for the position of Cook Supervisor,
Vacancy Announcement Number 05-GRE-006.
In a final decision dated October 16, 2007, the agency dismissed
complainant's complaint on the basis that it was initiated by untimely
EEO counselor contact.
On appeal, complainant maintains that he contacted an EEO counselor
within 45 days of the alleged discrimination. Complainant contends that
he had a meeting with the Warden on August 3, 2005 and made six or more
"diligent efforts" thereafter to contact an EEO counselor.
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).
Additionally, 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). EEO Counselor contact, for purposes of
tolling the time limit, requires at a minimum that the complainant intends
to pursue EEO counseling when she initiates EEO contact. See Snyder
v. Department of Defense, EEOC Request No. 05901061 (November 1, 1990);
Menard v. Department of the Navy, EEOC Appeal No. 01990626 (January 5,
2001), request for reconsideration denied, EEOC Request No. 05A10279
(May 9, 2001).
In this case, the agency notified complainant that he was not qualified
for a Cook Supervisor position on July 29, 2005. The counselor's report
reveals that complainant did not contact an EEO counselor until October
13, 2005, beyond the 45-day time limit. Complainant maintains that
he discussed the matter with the Warden on August 3, 2005. However,
complainant does not contend that he expressed an intention to initiate
the EEO process during his meeting with the Warden. Complainant further
maintains that he made six or more efforts to contact an EEO counselor
within the time limit. However, complainant did not provide any details
or evidence to substantiate this claim, such as copies of correspondences
or messages sent to the EEO counselor before the time limit expired.
Thus, we find that complainant failed to provide any persuasive evidence
that warrants an extension or waiver of the applicable time limits.
Consequently, we find that the agency properly dismissed complainant's
complaint on the basis that it was initiated by untimely EEO counselor
contact. | Andre R. Moore,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120080682
Agency No. P-2006-0079
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated October 16, 2007, 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 (African-American),
sex (male), age (over 40 years old), and in reprisal for prior protected
EEO activity when the Human Resources Department notified complainant on
July 29, 2005 that he did not qualify for the position of Cook Supervisor,
Vacancy Announcement Number 05-GRE-006.
In a final decision dated October 16, 2007, the agency dismissed
complainant's complaint on the basis that it was initiated by untimely
EEO counselor contact.
On appeal, complainant maintains that he contacted an EEO counselor
within 45 days of the alleged discrimination. Complainant contends that
he had a meeting with the Warden on August 3, 2005 and made six or more
"diligent efforts" thereafter to contact an EEO counselor.
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).
Additionally, 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). EEO Counselor contact, for purposes of
tolling the time limit, requires at a minimum that the complainant intends
to pursue EEO counseling when she initiates EEO contact. See Snyder
v. Department of Defense, EEOC Request No. 05901061 (November 1, 1990);
Menard v. Department of the Navy, EEOC Appeal No. 01990626 (January 5,
2001), request for reconsideration denied, EEOC Request No. 05A10279
(May 9, 2001).
In this case, the agency notified complainant that he was not qualified
for a Cook Supervisor position on July 29, 2005. The counselor's report
reveals that complainant did not contact an EEO counselor until October
13, 2005, beyond the 45-day time limit. Complainant maintains that
he discussed the matter with the Warden on August 3, 2005. However,
complainant does not contend that he expressed an intention to initiate
the EEO process during his meeting with the Warden. Complainant further
maintains that he made six or more efforts to contact an EEO counselor
within the time limit. However, complainant did not provide any details
or evidence to substantiate this claim, such as copies of correspondences
or messages sent to the EEO counselor before the time limit expired.
Thus, we find that complainant failed to provide any persuasive evidence
that warrants an extension or waiver of the applicable time limits.
Consequently, we find that the agency properly dismissed complainant's
complaint on the basis that it was initiated by untimely EEO counselor
contact.
Accordingly, the Commission AFFIRMS the agency's final decision.
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
_10/02/09_________
Date
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387 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/05970416.txt | 05970416.txt | TXT | text/plain | 7,814 | February 1, 1997 | Appeal Number: 01964243
Background:
In January 1996, appellant filed an EEO complaint alleging race
(Afro-American) and sex (male) discrimination when he was not selected
for a permanent GS-7 Accounting Technician position in May 1994.
At the time of this complaint, appellant held a temporary GS-7 Accounting
Technician position. In early 1994, he applied and was considered for a
permanent GS-7 Accounting Technician position. In late April 1994, the
Selecting Official advised appellant that a female employee (white) had
been selected for the position and that another female employee (white)
had had her temporary GS-7 promotion extended for another year. On May
4, 1994, management officially informed appellant of his nonselection.
In June 1994, appellant's temporary position ended and he returned to
a GS-6 position.
Appellant initiated EEO counseling on the instant complaint on December
12, 1995. The EEO Counselor's Report indicates that in May 1994,
appellant contacted the Denver EEO Office regarding a possible EEO
complaint on his nonselection but said that he was waiting to hear from
Human Resources before he went further with the EEO complaint.
In its final decision (FAD), the agency dismissed the complaint on the
grounds that appellant's contact with the EEO counselor in November
1995 was untimely. Appellant appealed from the FAD, asserting that
he was unaware of the discrimination until Human Resources completed
its investigation in October-November 1995. Upon review, the previous
Legal Analysis:
the Commission) to reconsider the decision
in Johnson v. Dep't of Defense, EEOC Appeal No. 01964243 (January
22, 1997). EEOC regulations provide that the Commissioners may,
in their discretion, reconsider any previous Commission decision.
29 C.F.R. §1614.407(a). The party requesting reconsideration must
submit written argument or evidence which tends to establish one or
more of the following three criteria: new and material evidence is
available that was not readily available when the previous decision
was issued, 29 C.F.R. §1614.407(c)(1); the previous decision involved
an erroneous interpretation of law or regulation, or material fact,
or a misapplication of established policy, 29 C.F.R. §1614.407(c)(2);
and the decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. §1614.407(c)(3). For the reasons
set forth herein, appellant's request is denied.
ISSUE PRESENTED
The issue presented is whether appellant's request meets any of the
criteria for reconsideration.
BACKGROUND
In January 1996, appellant filed an EEO complaint alleging race
(Afro-American) and sex (male) discrimination when he was not selected
for a permanent GS-7 Accounting Technician position in May 1994.
At the time of this complaint, appellant held a temporary GS-7 Accounting
Technician position. In early 1994, he applied and was considered for a
permanent GS-7 Accounting Technician position. In late April 1994, the
Selecting Official advised appellant that a female employee (white) had
been selected for the position and that another female employee (white)
had had her temporary GS-7 promotion extended for another year. On May
4, 1994, management officially informed appellant of his nonselection.
In June 1994, appellant's temporary position ended and he returned to
a GS-6 position.
Appellant initiated EEO counseling on the instant complaint on December
12, 1995. The EEO Counselor's Report indicates that in May 1994,
appellant contacted the Denver EEO Office regarding a possible EEO
complaint on his nonselection but said that he was waiting to hear from
Human Resources before he went further with the EEO complaint.
In its final decision (FAD), the agency dismissed the complaint on the
grounds that appellant's contact with the EEO counselor in November
1995 was untimely. Appellant appealed from the FAD, asserting that
he was unaware of the discrimination until Human Resources completed
its investigation in October-November 1995. Upon review, the previous
decision affirmed the FAD, finding that appellant reasonably suspected
the discrimination in May 1994.
In his reconsideration request, appellant asserted that the limitations
period for initiating EEO counselor contact should not apply in his case
because no EEO counselor was available at his facility when the alleged
discriminatory event occurred.
In response, the agency contends that appellant's reasonably suspected
discrimination in May 1994 and that his November 1995 EEO contact
therefore was untimely.
ANALYSIS AND FINDINGS
The Commission may, in its discretion, reconsider any previous decision
when the party requesting reconsideration submits written argument or
evidence which tends to establish that at least one of the criteria
of 29 C.F.R. §1614.407(c) is met. For a decision to be reconsidered,
the request must contain specific information that meets the criteria
referenced above.
Appellant contends that the limitations period for initiating EEO contact
should be waived because there was no EEO counselor available at his
facility at the time that this case arose.
Record evidence showed that in May 1994, appellant contacted the Denver
EEO Office regarding the incident at issue in this case. Thus, although an
EEO counselor may not have been available at appellant's facility during
the time period at issue, appellant had access to an EEO counselor in
the Denver EEO Office had he chosen to pursue his complaint at that time.
Because appellant's request fails to meet the criteria for
reconsideration, the Commission denies the request for that reason. | Norman R. Johnson, )
Appellant, ) Request No. 05970416
) Appeal No. 01964243 v. )
Agency No. 96008 )
William S. Cohen, )
Secretary, )
Department of Defense, )
Agency. )
________________________________)
DENIAL OF RECONSIDERATION
On February 1, 1997, Norman R. Johnson (hereinafter referred to
as appellant) timely initiated a request to the Equal Employment
Opportunity Commission (the Commission) to reconsider the decision
in Johnson v. Dep't of Defense, EEOC Appeal No. 01964243 (January
22, 1997). EEOC regulations provide that the Commissioners may,
in their discretion, reconsider any previous Commission decision.
29 C.F.R. §1614.407(a). The party requesting reconsideration must
submit written argument or evidence which tends to establish one or
more of the following three criteria: new and material evidence is
available that was not readily available when the previous decision
was issued, 29 C.F.R. §1614.407(c)(1); the previous decision involved
an erroneous interpretation of law or regulation, or material fact,
or a misapplication of established policy, 29 C.F.R. §1614.407(c)(2);
and the decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. §1614.407(c)(3). For the reasons
set forth herein, appellant's request is denied.
ISSUE PRESENTED
The issue presented is whether appellant's request meets any of the
criteria for reconsideration.
BACKGROUND
In January 1996, appellant filed an EEO complaint alleging race
(Afro-American) and sex (male) discrimination when he was not selected
for a permanent GS-7 Accounting Technician position in May 1994.
At the time of this complaint, appellant held a temporary GS-7 Accounting
Technician position. In early 1994, he applied and was considered for a
permanent GS-7 Accounting Technician position. In late April 1994, the
Selecting Official advised appellant that a female employee (white) had
been selected for the position and that another female employee (white)
had had her temporary GS-7 promotion extended for another year. On May
4, 1994, management officially informed appellant of his nonselection.
In June 1994, appellant's temporary position ended and he returned to
a GS-6 position.
Appellant initiated EEO counseling on the instant complaint on December
12, 1995. The EEO Counselor's Report indicates that in May 1994,
appellant contacted the Denver EEO Office regarding a possible EEO
complaint on his nonselection but said that he was waiting to hear from
Human Resources before he went further with the EEO complaint.
In its final decision (FAD), the agency dismissed the complaint on the
grounds that appellant's contact with the EEO counselor in November
1995 was untimely. Appellant appealed from the FAD, asserting that
he was unaware of the discrimination until Human Resources completed
its investigation in October-November 1995. Upon review, the previous
decision affirmed the FAD, finding that appellant reasonably suspected
the discrimination in May 1994.
In his reconsideration request, appellant asserted that the limitations
period for initiating EEO counselor contact should not apply in his case
because no EEO counselor was available at his facility when the alleged
discriminatory event occurred.
In response, the agency contends that appellant's reasonably suspected
discrimination in May 1994 and that his November 1995 EEO contact
therefore was untimely.
ANALYSIS AND FINDINGS
The Commission may, in its discretion, reconsider any previous decision
when the party requesting reconsideration submits written argument or
evidence which tends to establish that at least one of the criteria
of 29 C.F.R. §1614.407(c) is met. For a decision to be reconsidered,
the request must contain specific information that meets the criteria
referenced above.
Appellant contends that the limitations period for initiating EEO contact
should be waived because there was no EEO counselor available at his
facility at the time that this case arose.
Record evidence showed that in May 1994, appellant contacted the Denver
EEO Office regarding the incident at issue in this case. Thus, although an
EEO counselor may not have been available at appellant's facility during
the time period at issue, appellant had access to an EEO counselor in
the Denver EEO Office had he chosen to pursue his complaint at that time.
Because appellant's request fails to meet the criteria for
reconsideration, the Commission denies the request for that reason.
CONCLUSION
After a review of appellant's request for reconsideration, the
agency's response, the previous decision, and the record as a whole,
the Commission finds that appellant's request fails to meet the criteria
of 29 C.F.R. §1614.407(c), and it is the decision of the Commission to
deny the request. The decision in EEOC Appeal No. 01964243 remains the
Commission's final decision. There is no further right of administrative
appeal from a decision of the Commission on a request for reconsideration.
STATEMENT OF RIGHTS--RECONSIDERATION
RIGHT TO FILE A CIVIL ACTION (P0993)
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.
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.
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 25, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat | [
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388 | https://www.eeoc.gov/sites/default/files/decisions/2020_12_07/2020001503.pdf | 2020001503.pdf | PDF | application/pdf | 7,889 | Gregg Y.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency. | November 8, 2019 | Appeal Number: 2019001478 | Gregg Y.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.
Request No. 2020001503
Appeal No. 2019001478
Hearing No. 440-2018-00043X
Agency No. 6X000000217
DECISION ON REQUEST FOR RECONSIDERATION
Complainant requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 2019001478 (November 8, 2019). EEOC Regulations provide that the Commission ma y, 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 involve d 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).
In his underlying complaint on the instant matter, Complainant alleged the Agency subject him
to discrimination based on race (African-American), sex (male), color (brown), and in reprisal for prior protected EEO activity when:
1This 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.
2020001503 2
1. on June 30, 2016, Complainant was notified by a fellow employee that she was not
allowed to have Complainant serve as her representative for an EEO complaint the co-worker had filed; and
2. on August 7, 2016, and ongoing, the Agency refused to respond to, or accept and process,
Complainant’s own EEO claims of discrimination and retaliated against him when it did not allow Complainant to participate in any REDRESS mediation as a counselee.
The Agency initially dismissed Complainant’s complaint finding he did not have standing to file
a claim regarding the Agency's action to precl ude him from representing his coworker in the
EEO process. Complainant appealed the dismissal to the Commission in EEOC Appeal No. 0120171308 (July 20, 2017). On appeal, Complainant ar gued the Agency failed to address his
claim regarding Agency’s preclusion in his own EEO claims . The Commission found
Complainant did not have standing to raise a claim concerning his pr eclusion from representing
another employee. However, the Commission f ound the Agency did not reach Complainant's
claim that he was being denied his rights as a complainant with regard to his own EEO claims. The Commission reversed the dismissal of Complainant’s claim that the Agency was denyinghim the right to fully participate, as a Complainant on his own behalf, in the EEO complaint process and remanded the matter fo r investigation and processing with regard to his claim the
Agency barred him from participating in the EEO process on his own behalf.
After Complainant requested a hearing, an EEOC Administrative Judge (AJ) dismissed the
complaint for untimeliness. The Agency adopted the AJ’s decision an d dismissed the claim
pursuant to 29 C.F.R. § 1614.107(a)(2), for unt imely EEO Counselor contact. Complainant
appealed the Agency’s final order.
On appeal, the Commission affirmed the Agency ’s dismissal. Specifically, we found the
investigative record showed Complainant’s prio r complaints of discrimination in December 2013
and December 2015, were closed on May 9, 2016 and March 7, 2016, respectively. However, Complainant did not contact an EEO counselor in the instant case until November 8, 2016,
which was well beyond the 45- day time limit. Additionally, we found Complainant failed to
provide sufficient justification for extending or tolling the time limit.
In his request for reconsideration, Complainan t argues the Commission erred in affirming the
dismissal because in a prior EEOC appeal, th e Commission remanded the matter for the Agency
to investigate and process the complaint. Complainant alleges this finding proves he made timely contact with an EEO Counselor.
In response to the request for reconsideration, th e Agency contends that Complainant has failed
to meet the criteria for recons ideration. Specifically, the Agen cy points out the prior decision
under EEOC Appeal No. 0120171308 found only that the Agency should investigate and process
his complaint with regard to his own EEO cla ims. The Agency points out the Commission never
made a determination as to wh ether Complainant made timely c ontact with an EEO Counselor.
2020001503 3
The Agency contends the appeal decision should be affirmed because, as the Administrative
Judge properly found, Complainant failed to make timely contact with an EEO Counselor or
provide any justification for waiv er of the statutory requirement.
We agree with the Agency’s argument in re sponse to the request for reconsideration. The
Commission never made a determination on whether Complainant’s complaint was timely in EEOC Appeal No. 0120171308. Our decision allowed fo r the Agency to process the complaint
as a new complaint, which the Agency did. We note after issuing an Amended Notice of Intent to Issue Summary Judgment Decision, and receiving re sponses from both parties, the AJ assigned
to the case dismissed the matter as untimely pur suant to 29 C.F.R. § 1614.109(g), citing to the
undisputed facts in the record. Additionally, the AJ noted in the dismissal Complainant failed to
allege he contacted an EEO C ounselor within the 45-day time limit. As we found in our previous
decision on this complaint, Complainant failed to show he made timely contact with an EEO Counselor or provide justification for a waiver of the 45-day time limit.
After reviewing the previous decision, the entire record, as well as arguments for
reconsideration, the Commission finds that the reque st fails to meet the criteria of 29 C.F.R. §
1614.405(c), and it is the decision of the Commissi on to deny the request. The decision in
EEOC Appeal No. 2019001478 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 righ t 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 mu st name as the defendant in the complaint the
person who is the official Agency head or departme nt 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 orga nization, 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 attorn ey 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 gran t or deny these types of requests.
2020001503 4
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, DirectorOffice of Federal Operations
August 27, 2020
Date | [
"29 C.F.R. § 1614.405(a)",
"29 C.F.R. § 1614.405(c)",
"29 C.F.R. § 1614.107(a)",
"29 C.F.R. § 1614.109(g)"
] | [
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389 | https://www.eeoc.gov/sites/default/files/decisions/2021_01_25/2020001503.pdf | 2020001503.pdf | PDF | application/pdf | 7,889 | Gregg Y.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency. | November 8, 2019 | Appeal Number: 2019001478 | Gregg Y.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.
Request No. 2020001503
Appeal No. 2019001478
Hearing No. 440-2018-00043X
Agency No. 6X000000217
DECISION ON REQUEST FOR RECONSIDERATION
Complainant requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 2019001478 (November 8, 2019). EEOC Regulations provide that the Commission ma y, 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 involve d 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).
In his underlying complaint on the instant matter, Complainant alleged the Agency subject him
to discrimination based on race (African-American), sex (male), color (brown), and in reprisal for prior protected EEO activity when:
1This 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.
2020001503 2
1. on June 30, 2016, Complainant was notified by a fellow employee that she was not
allowed to have Complainant serve as her representative for an EEO complaint the co-worker had filed; and
2. on August 7, 2016, and ongoing, the Agency refused to respond to, or accept and process,
Complainant’s own EEO claims of discrimination and retaliated against him when it did not allow Complainant to participate in any REDRESS mediation as a counselee.
The Agency initially dismissed Complainant’s complaint finding he did not have standing to file
a claim regarding the Agency's action to precl ude him from representing his coworker in the
EEO process. Complainant appealed the dismissal to the Commission in EEOC Appeal No. 0120171308 (July 20, 2017). On appeal, Complainant ar gued the Agency failed to address his
claim regarding Agency’s preclusion in his own EEO claims . The Commission found
Complainant did not have standing to raise a claim concerning his pr eclusion from representing
another employee. However, the Commission f ound the Agency did not reach Complainant's
claim that he was being denied his rights as a complainant with regard to his own EEO claims. The Commission reversed the dismissal of Complainant’s claim that the Agency was denyinghim the right to fully participate, as a Complainant on his own behalf, in the EEO complaint process and remanded the matter fo r investigation and processing with regard to his claim the
Agency barred him from participating in the EEO process on his own behalf.
After Complainant requested a hearing, an EEOC Administrative Judge (AJ) dismissed the
complaint for untimeliness. The Agency adopted the AJ’s decision an d dismissed the claim
pursuant to 29 C.F.R. § 1614.107(a)(2), for unt imely EEO Counselor contact. Complainant
appealed the Agency’s final order.
On appeal, the Commission affirmed the Agency ’s dismissal. Specifically, we found the
investigative record showed Complainant’s prio r complaints of discrimination in December 2013
and December 2015, were closed on May 9, 2016 and March 7, 2016, respectively. However, Complainant did not contact an EEO counselor in the instant case until November 8, 2016,
which was well beyond the 45- day time limit. Additionally, we found Complainant failed to
provide sufficient justification for extending or tolling the time limit.
In his request for reconsideration, Complainan t argues the Commission erred in affirming the
dismissal because in a prior EEOC appeal, th e Commission remanded the matter for the Agency
to investigate and process the complaint. Complainant alleges this finding proves he made timely contact with an EEO Counselor.
In response to the request for reconsideration, th e Agency contends that Complainant has failed
to meet the criteria for recons ideration. Specifically, the Agen cy points out the prior decision
under EEOC Appeal No. 0120171308 found only that the Agency should investigate and process
his complaint with regard to his own EEO cla ims. The Agency points out the Commission never
made a determination as to wh ether Complainant made timely c ontact with an EEO Counselor.
2020001503 3
The Agency contends the appeal decision should be affirmed because, as the Administrative
Judge properly found, Complainant failed to make timely contact with an EEO Counselor or
provide any justification for waiv er of the statutory requirement.
We agree with the Agency’s argument in re sponse to the request for reconsideration. The
Commission never made a determination on whether Complainant’s complaint was timely in EEOC Appeal No. 0120171308. Our decision allowed fo r the Agency to process the complaint
as a new complaint, which the Agency did. We note after issuing an Amended Notice of Intent to Issue Summary Judgment Decision, and receiving re sponses from both parties, the AJ assigned
to the case dismissed the matter as untimely pur suant to 29 C.F.R. § 1614.109(g), citing to the
undisputed facts in the record. Additionally, the AJ noted in the dismissal Complainant failed to
allege he contacted an EEO C ounselor within the 45-day time limit. As we found in our previous
decision on this complaint, Complainant failed to show he made timely contact with an EEO Counselor or provide justification for a waiver of the 45-day time limit.
After reviewing the previous decision, the entire record, as well as arguments for
reconsideration, the Commission finds that the reque st fails to meet the criteria of 29 C.F.R. §
1614.405(c), and it is the decision of the Commissi on to deny the request. The decision in
EEOC Appeal No. 2019001478 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 righ t 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 mu st name as the defendant in the complaint the
person who is the official Agency head or departme nt 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 orga nization, 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 attorn ey 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 gran t or deny these types of requests.
2020001503 4
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, DirectorOffice of Federal Operations
August 27, 2020
Date | [
"29 C.F.R. § 1614.405(a)",
"29 C.F.R. § 1614.405(c)",
"29 C.F.R. § 1614.107(a)",
"29 C.F.R. § 1614.109(g)"
] | [
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-0.06444397568702698,
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0.018197176977992058,
0.030416501685976982,
0.002547161653637886,
-0.10809899866580963,
-0.0... |
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